NASREEN BANO Vs. MOHD. SUHAIL

JUDGEMENT

(1.) This is defendant's appeal under section 19 of Family Court's Act 1984 (hereinafter referred to as 'Act 1984'), challenging judgement dated 17.12.2012 and decree dated 20.12.2012, passed by Principal Judge, Family Court, Bareilly in Petition No. 21 of 2010 (Mohd. Suhail Vs. Smt. Nasreen Bano) under section 25 of Guardian and Wards Act, 1890 (hereinafter referred to as 'Act 1890') whereby and where-under Guardianship and custody of Ms. Sania Azmi and Ms. Jainab Azmi have been given to plaintiff-respondent.

(2.) It transpires from record that marriage of defendant-appellant Smt. Nasreen Bano was solemnized with plaintiff respondent Mohd. Suhail on 18.11.1999 in accordance with Muslim Rites and Customs. Out of aforesaid wedlock, three children namely, Ms. Sania Azmi, date of birth 30.4.2002; Ms. Jainab Azmi, date of birth 14.1.2007; and, Master Mohd. Umair, date of birth 28.3.2008, were born. Subsequently, relations between parties became strained. Defendant-appellant is alleged to have left house of plaintiff-respondent on 9.11.2008 along with her three children. Plaintiff-respondent filed Original Suit No. 151 of 2008 (Mohd. Suhail Vs. Smt Nasreen Bano) for restitution of conjugal rights in Family Court, Nainital, which was dismissed. Subsequently, plaintiff-respondent filed Case No. 21 of 2010 (Mohd. Suhail Vs. Smt. Nasreen Bano), under section 25 of Act 1890 seeking guardianship and custody of minor children.

(3.) A perusal of plaint (paper no.9 kha) will go to show that plaintiff-respondent alleged that marriage of plaintiff-respondent was solemnized with defendant-appellant on 18.11.1999 in accordance with Muslim Rites and Customs. From the aforesaid wedlock, three children namely, Ms. Sania Azmi, date of birth 30.4.2002; Ms. Jainab Azmi, date of birth 14.1.2007; and, Master Mohd. Umair, date of birth 28.3.2008, were born. Subsequently, after passage of some time, relations between the parties became strained on account of which it was alleged by plaintiff-respondent that defendant-appellant started misbehaving with plaintiff-respondent. The defendant appellant is further alleged to have deserted plaintiff respondent. She started residing at her khala's place. A case under Dowry Prohibition Act was lodged by Defendant-Appellant. Same was subsequently, withdrawn and Defendant-Appellant again started residing with plaintiff-respondent. On 8.11.2008, an unfortunate incident occurred in the house of plaintiff-respondent. On the next day, i.e. 9.11.2008, defendant-appellant along with her three children left her marital home and went to her khala's place and started residing there. It is at this stage, that plaintiff-respondent filed Original Suit No. 151 of 2008 for restitution of conjugal rights, which was dismissed vide judgement dated 28.4.2009. The eldest daughter Ms. Sania Azmi was studying at New Oxford School, Haldwani. However, as defendant-appellant had taken her along with herself and residing at Bareilly, she has been deprived of her education. The interest of other two children namely Ms. Zainab Azmi and son Master Mohd. Umair is also not well protected in the guardianship of defendant-appellant as she does not have sufficient means to look after and maintain three minor children. As plaintiff-respondent is the natural guardian of three children and their interest is well protected in the company of plaintiff-respondent, custody and guardianship of his three minor children be provided to plaintiff-respondent.