SAIF UL ISLAM HABEEB ALI Vs. ASMA BEGUM

JUDGEMENT

(1.) This appeal is filed under Section 19(1) of the Family Courts Act, 1984, aggrieved by the order, dated 25.09.2012, passed by the learned Judge, Additional Family Court, Hyderabad, dismissing O.P.No.1464 of 2010, filed by the appellant herein under Section 25 of the Guardians and Wards Act, 1890 for custody of minor daughter Baby Habeebunissa.

(2.) It was the case of the appellant before the Family Court that the marriage between the appellant and respondent took place as per Muslim rites on 15.06.2003 at Hyderabad and out of their wedlock, a female child by name Habeebunissa was born to them on 29.04.2004. At the time of filing O.P. in the year 2010, it is stated that the child was aged about 8 years. The respondent filed a petition for divorce in O.P.No.605 of 2006 on the file of Family Court, Hyderabad and the same was allowed on 17.07.2008, dissolving the marriage between the appellant and the respondent. Thereafter, the respondent filed C.C.No.553 of 2004 against the appellant and the same was dismissed, so also an application in D.V.C.No.9 of 2007 was filed on the file of learned IV Additional Chief Metropolitan Magistrate Court, Hyderabad. It is pleaded that the respondent after obtaining divorce, has remarried, as such, she has no right to have the custody of the daughter. Claiming that he being the father and natural guardian, entitled to the custody of his minor daughter as per Muslim law, it is alleged that the respondent is running a beauty parlour and she is trying to admit the girl child in orphanage home to get rid of her responsibility. On the aforesaid allegations, custody of minor daughter was sought for.

(3.) The respondent filed counter before the Family Court. Briefly, the averments in the counter are that - she has admitted the marriage and their child. It is averred in the counter that the minor child is in the custody of the respondent since her birth and the petitioner never looked after the minor child and he has not paid any maintenance. It is further pleaded that after marriage the appellant demanded Rs.15.00 lakhs from the parents of the respondent and they have paid Rs.5.00 lakhs. Thereafter, further demand was made for an amount of Rs.1.00 lakh and as the respondent refused to pay, the appellant sprinkled kerosene on the respondent when she was sleeping and tried to burn the respondent, but suddenly she woke up and ran away. It is further averred in the counter that the appellant necked out the respondent from the house and since then she has been living with her parents and she also filed M.C.No.226 of 2004 on the file of Additional Family Court, Hyderabad and maintenance amount of Rs.1,250/- per month was granted to the respondent and her minor daughter. The respondent admitted that she filed O.P.605 of 2006 for dissolution of marriage and further pleaded that earlier also the appellant filed O.P.No.171 of 2008 for custody of the child, in which the respondent produced the child before the Court and on examination, the child had expressed her desire not to go with the appellant, as such, the said O.P. was dismissed. With the aforesaid averments, she prayed for dismissal of the O.P.No.1464 of 2010.