SHAMA BEG Vs. KHAWAJA MOHIUDDIN AHMED

JUDGEMENT

(1.) This Letter Patent Appeal is filed against the judgment dated November 2, 1970 passed by a learned single Judge of this Court whereby the learned Judge dismissed the appeal filed by the appellant against the order dated 2nd April, 1970 passed by the District Judge, Delhi directing the appellant to cause the custody of the minor Master Shuja to be given to the respondent. Before the learned single Judge, amongst other contentions, the two contentions raised were that respondent had re-married and had children from his second wife ; that from the time of its birth, the child has not even been seen by the father; that under the circumstances the respondent could not be expected to have any love or affection for the child and that it is in the interest and for the welfare of the minor that its mother's mother should continue to have the custody of the minor as the minor was being maintained by Shrimati Kidwai, maternal grandmother whose husband was the Indian Ambassador in Syria. The learned single Judge observed that "these considerations cannot over-ride the consideration of the interest and welfare of the child, which has not been shown to be in danger of being adversely affected if the respondent-father is given its custody. The child's welfare, therefore, undoubtedly lies in its being placed in the custody of the respondent." With the above observations and taking the view that the mother disentitled herself to the custody of the child on her re-marriage, the learned single Judge confirmed the judgment of the District Judge and dismissed the appeal of the appellant.

(2.) The admitted facts in the appeal are that the minor Master Shuja who is reported to be of 6 years and one month of age, was born out of the wedlock of the parties. The parties, after their marriage, for certain reasons, which for the purposes of this appeal need not be recapitulated, could not live in harmony and eventually divorced each other. It is also admitted by the parties that after they had divorced each other, both of them re- married and they have children from their second marriage. The case of the appellant is that eversince the minor Master Shuja was born, his father, the respondent, had not cared to see and look after the child who has all along been brought up by his grand-mother Shrimati Kidwai. That being so the respondent who has re-married is not expected to have love and affection for the child and that it would not be in the interest of the child that the custody be given to the respondent. The appellant has further urged that the respondent did not pay anything towards the maintenance of the minor and that she had to take proceedings for the recovery of maintenance in the Court of Shri R. L. Gupta, Sub Judge 1st Class, Delhi in which suit the respondent by a compromise decree agreed to pay Rs. 200.00 per month w.e.f. 1st May, 1966 towards the maintenance of the minor. The said amount was agreed to be paid by the respondent till the minor attains the age of 7 years by the 25th of October, 1972. It was also submitted that despite the aforesaid compromise decree, the respondent has not paid anything towards the maintenance of the minor and has neither cared to show love and affection to the minor. It was accordingly contended that it would not be in the interest of the minor to snatch him from his present environments where he is happily settled. The minor being a child of tender age. it was argued that he would not be psychologically able to adjust himself in the altogether new rather alien environments if his custody is given to the respondent. Mr. Bhagwat Dayal, the learned counsel for the respondent submitted that the minor is deliberately being kept out of the way of the respondent and if the minor does not recognise the respondent and that the present estrangement if it be said so, which prevails between the respondent-father and the minor, it is all due to the appellant who has denied the opportunity to the respondent to see and have access to the minor. In this connection the learned counsel for the respondent referred to a copy of the notice dated 26th July, 1967, Ex. P 1, sent by the counsel for the respondent to the appellant requesting her to fix some date, time and place convenient to her to enable the respondent to pay a visit to meet and see the minor. Further it was stated that the appellant and her parents even did not allow the minor to adopt the family name of the father as is evident from Ex. Public Witness 2/1, a copy of the application submitted by the grand-father of the minor Shri Kidwai, asking that the name of the minor be included in the passport of his wife as the minor was proposed to be taken out of the country and in the said application the name of the minor has been stated as Ali Shuja Kidwai although Kidwai does not happen to be the surname of the minor as the said Surname is the name of the grand-father.

(3.) For the purposes of this apeal, we need not go into the relative allegations of the parties as the matter can be disposed of on the point of law.