ZYNAB BI ALIAS BIBIJAN Vs. MOHAMMAD GHOUSE MOHIDEEN

JUDGEMENT

(1.) A Muslim mother of her two infant minor children, a female and a male of the ages of about five and two respectively applies in this petition for custody of her two infants from the Respondent, who is her husband, and the petition is laid under Section 25, Guardians and Wards Act. Parties were married on 14-121941 and have four children, Mumtazurnisa aged about seven years, Ghiasunnisa aged about five years, Jameelunnisa aged about three years, and Ravoofuddin aged about one year and ten months. Ghiasunnisa and Bavoofuddin are the minors concerned in this petition. The said minor children are admittedly at present in the custody of the Respondent, the other two Mumtazunnisa and Jameelunnisa being with the petitioner. The petitioner was living with the respondent till about two months after the birth of the minor boy, Bavoofuddin, and it is stated by the petitioner that for about two years after the marriage there have been some disputes between the husband and wife regarding the properties of the wife and the allegation is that the husband, the respondent herein, wanted to have these properties for himself, that he there, fore persuaded the wife to mortgage the same, that, in fact, a mortgage for Rs. 3,000 was executed and that on account of these differences there have been certain ill-feelings and for some time they have been living separately. It is alleged that the respondent married for the second time on 13-1-1949 and lived with his second wife separately for some time and that the said marriage was dissolved by Khula through a Khazi on 2-9-1949. It is stated that the Respondent came to the Petitioner's residence when she was residing with her uncle, and took away three of the children forcibly, but subsequently the children were brought back to the petitioner. The petitioner states that eventually, on 30-1-1951, the respondent came to her residence when no male member was present and took away the two minors. Ghiasunnisa and Ravoofuddin, that the petitioner raised an alarm and cried aloud for assistance and that before any assistance could be available the respondent took away the children and has been retaining them till now.

(2.) The contention of the petitioner is that both under Mahommedan law and in the interests and the welfare of the children, she is entitled to their custody. Certain allegations are made in the petition that the respondent is of bad character, that he is involved in debt, that the children cannot be properly taken care of by him and that in the interests of the children it is essential that they should be restored to their legal guardian, the petitioner. The allegations as to his character, financial position, and unemployment are denied by the respondent in his counter affidavit. The respondent's case is that he has always been kind to his wife and children, that he has been anxious to have his family with him, but due to the evil advice of the uncle of the petitioner, she is refusing to live with him, with her children. There were also criminal proceedings between the parties. As regards the removal of the children on 301- 1951, respondent denies that he took them away forcibly, but says that he went to her uncle's house where she was staying, had a talk with her and persuaded her to come away with him so that they could live happily, that she promised to join him with the children, in a short time. He then told her that in that case he would have two children, the two minors concerned in this petition, with him and the other children would remain with her to which she agreed; and under that arrangement, the respondent says that the two children came away with him and that they are now being well looked after and treated properly by the respondent's step-mother and his sisters.

(3.) The main attack of the respondent is against the uncle of the petitioner who is stated to be au unscrupulous person and the respondent says that it is on account of his evil advice all these troubles are stated to have arisen. It is not necessary for the purpose of this petition to go into the truth or otherwise of the several allegations and counter allegations that are made by the parties excepting those which would be necessary and relevant for considering the question of custody of children and their welfare. The fact that the respondent married another woman and divorced her is not denied and there is no doubt that the relationship between the parties has not been very happy, at any rate after two years after the marriage and that it continues to be so upto now, the disputes being mainly relating to the question of properties. The suggestion of the petitioner is that the respondent, and his father are anxious to deprive her of her two immovable properties which she is possessed of, that on account of her failing to accede to their request they are trying all means to make her unhappy and that their keeping the children with them is also one of the modes by which they are trying to enforce their will on the petitioner. The existence of disputes having been found, it appears, that without finding at this stage as to whether either party is absolutely to be blamed, there have been differences on account of the properties of the petitioner and though there are allegations by the petitioner of bad treatment by the respondent, the main trouble seems to arise from the question of the properties. Whatever the reason is, the husband and wife have not seen their way to join. I tried in the course of this enquiry to persuade the mother to live apart for some time with her children, when the respondent would be allowed to visit her, but she is not willing to do so as she has stated in her affidavit that she apprehends that he will treat her cruelly. It has therefore become necessary to decide as to whom the custody of the children should be given.