ARAFATHUNNISA Vs. T I ZEEYAVUDEEN

JUDGEMENT

(1.) THIS appeal is filed by the wife as against the order and decretal order dated 11.7.2008 passed by the learned Subordinate Judge, Tiruvarur, in G.W.O.P. No. 9 of 2008, whereby the original petition filed by the 1st respondent/husband, seeking the custody of the minor female child, was allowed.

(2.) THE short facts, which are necessary to decide the issue involved in the appeal, are as follows: THE appellant and the 1st respondent got married under Muslim Law and out of the wedlock, the appellant gave birth to a female child, by name, Ariz Fathima on 18.7.1998. It is the case of the 1st respondent/husband that the appellant/wife was not in a sound mind even prior to the marriage and he came to know the same only after the marriage and she was taking treatment for the same with different psychiatrists. While so, the appellant started torturing the child whenever she was affected by Hysteria. On 27.1.2000, the appellant left the matrimonial home at Thirunageswaram near Kumbakonam to her mother's place at Chidambaram. All the efforts taken by the elders to pacify the appellant ended in futile. THE appellant did not return to the matrimonial home till July 2000 and hence, a complaint was made to Chidambaram Jamath by the 1 st respondent. THEreafter, the child was handed over to the 1 st respondent on 28.7.2000 by the Chidambaram Jamath and she was in the custody of the 1st respondent/husband from 28.7.2000 to 15.12.2006. In the said situation, the appellant rejoined the 1st respondent on 11.5.2003; but she once again left the matrimonial home, leaving the child at Thirunageswaram and attempts made by the jamayathdars to unite the couple failed. Hence, the 1st respondent filed a suit in O.S. 109 of 2006 on the file of Sub Court, Kumbakonam, for restitution of conjugal rights and the suit was decreed on 11.9.2007. In the meantime, on 15.2.2006, the appellant visited the minor's school and took away the child, without the knowledge of the 1st respondent. Subsequently, a complaint was lodged to the police by the 1st respondent. In pursuance of the same, a writ petition was filed by the appellant in W.P. No. 5043 of 2006 for bearing the Inspector of Police, Kumbakonam, from acting on the complaint made by the 1st respondent. But, ultimately, the said writ petition was dismissed on 23.2.2006. Finally, the 1st respondent has filed the guardian original petition to have the custody of the minor child.

(3.) PENDING appeal, on 30.9.2010, the appellant got re-married another person and the second marriage of the appellant was admitted by both sides. Hence, in view of the changed circumstances, the submissions were made by the learned counsel on either side as to whether the appellant is entitled to have the custody of the minor child after second marriage, under Mohammaden Law.