G.A. MISTAFA Vs. INYATH RATHIMA SHAH

JUDGEMENT

(1.) THIS is a petition under Sections 7(1)(b) and 25 of the Guardians and Wards Act, 1890, to declare the petitioner as the guardian, and for the custody of his minor daughter, Khudsia Fathima alias Shala Navid. The respondent is the divorced wife of the petitioner. The petitioner, who is employed as a pilot in Indian Airlines Corporation, stationed at Calcutta, married the respondent at Madras on 3rd September, 1960, and the respondent begot Khudsia Fathima alias Shala Navid on 28th October, 1961. When the couple were living at Calcutta along with the minor, the petitioner appears to have developed friendship with an air -hostess and divorced the respondent on 4th May, 1967. After the divorce, the respondent came away to Madras with the minor daughter and is now living with her parents, who are residents of Madras. The petitioner is a native of Madras where he has got an ancestral house in which his parents are living. The petitioner's contention is that he being she natural guardian of his minor daughter, is entitled to be appointed guardian and is also entitled to custody.

(2.) THE respondent's contention is that the petitioner treated her and the child in an indifferent and cruel manner when they were at Calcutta and relinquished all his claim over the child at the time of the divorce and that by reason of his conduct, he is disentitled from asking for the custody of the child, though in law he may be the guardian. The petitioner has filed a reply statement denying that he relinquished his right to the custody of the child.

(3.) IT is not in controversy that the petitioner who is the father of the minor, is the natural and lawful guardian. The only question is whether he is entitled to the custody of the child. In considering this question what is paramount is the welfare of the minor. Such welfare includes the moral, religious and physical welfare and ties of natural affection cannot be ignored in considering the question of custody. Under what circumstances the minor left the custody of the petitioner should be examined to find out whether he is entitled to the custody. What happened between the couple prior to the divorce, that was effected on 4th May, 1967 is not strictly germane for consideration in this proceeding, and as such they were well advised in not letting any evidence on that question. All that appears from the oral evidence is that the respondent resented the visits of the air -hostess to her house and that led to misunderstanding resulting in divorce. The evidence of the respondent further shows that only when she was taken to the presence of the Khazi on 4th May, 1967 she came to know that she was taken there for the purpose of divorce. Exhibit D -2, dated 4th May, 1967 is the deed of divorce written by the Khazi Ahmed Raza of Calcutta and signed by the petitioner. It is in Urdu (English translation attached). It refers to the divorce and also states that the child will always remain with the respondent and that from that date the petitioner shall have no relationship whatsoever. While admitting the signature in the divorce deed, the petitioner contends that when he signed the document, it contained only the recitals relating to the divorce, that there was no reference to the child and that the reference to the child appears to have been incorporated by the Khazi after he signed. But the evidence of the respondent is that after the first portion of the document relating to the divorce was written and read out by the Khazi, she stated that there was a child, that the child should be with her, that thereupon the Khazi questioned the petitioner, that the petitioner replied stating that the respondent will take the child and that he will have nothing to do with the child thereafter. He evidence is that thereafter the Khazi wrote the recitals relating to the child and that thereafter the petitioner signed with full knowledge of all the contents. The question is which of these two versions is believable. The petitioner admits that the entire document is in the handwriting of the Khazi. He does not attribute any motive to the Khazi as to why he should be a party to the insertion of a recital, without his consent and knowledge in the document after he, the petitioner, signed it. Much reliance is placed upon the word ' faqth ' in Urdu, which means " thus," occurring after the recitals dealing with divorce and before the recitals dealing with the child, That word was evidently written by the Khazi thinking hat there was nothing more to be written after he wrote the recitals about the divorce. It was only after he wrote up to that word and after he read out the document, the respondent claimed custody of the child and thereafter the Khazi after ascertaining the wishes of the petitioner wrote the remaining portion of the document dealing with the child, but omitted to strike out the word " faqth." It is not the evidence of the respondent that the entire document was written at a stretch. As a matter of fact, she admits that the portion relating to the child was written subsequently but before the petitioner signed the document.