AHMED MOHIUDDIN Vs. SHABANA YASMEEN

JUDGEMENT

(1.) THE appellant Ahmed Mohiuddin is the husband of Shabana Yasmeen who is the respondent herein as well before the Judge, Family Court, Hyderabad in O.P. No. 1411 of 2010. The petitioner, appellant herein, filed the said petition, under Section 25 of Guardians and Wards Act against his wife, for custody of their three minor children viz., Ramsha Tahoor Ahmed, 17 years; Zubia Menaaz Ahmed, 15 years; Mohammed Afraz Ahmed, 7 years. Before the trial Court the petitioner himself was examined as P.W -1 with reference to Exs. P -1 to P -51 and one M.M. Hussain was examined as P.W -2 and the respondent herself was examined as R.W -1 with reference to Exs. R -1 to R -7. The trial Court pursuant to the pleadings and contest basing on the evidence, dismissed the petition by order dated 15.06.2013 negating the custody with observations that since all the three children are residing with the mother i.e., respondent and of whom the 1st daughter is a major, the 2nd daughter also almost reached the age crossing minority, but for the third issue son, born on 10.05.2004, for whom the petitioner has been enjoying the visiting rights as per the orders in I.A. No. 372 of 2011, there is nothing to disturb their custody from the children also willing to stay with their mother.

(2.) THE present appeal is filed questioning the legality and correctness of the order of the learned Judge, Family Court in negating the custody as sought for. The contentions in the grounds appeal, so also in the written arguments he submitted by referring six expressions viz., Mir Mohamed Bahauddin V. Mujee Bunnisa Begum Sahiba, AIR 1952 (39) Madras 280 (C.N.105(16)), (Madras High Court), Arafathunnisa V. T.I. Zeeyavudeen, Taraja Beevi and Mohammed Yasin, 2010 Law Suit (Mad) 2338 (Madras High Court), Jaswant Kaur V. Chanan Singh, AIR 1962 Manipur 60 (V 49 C 20) (Manipur High Court), Syyad Sabdarali Sy. Nyajali V. Shahistabegum, 2007 Law Suit (Bom) 468 (Bombay High Court of Aurangabad bench) and of the Apex Court in Mausami Moitra Ganguli V. Jayan Ganguli : (2008)7 SCC 673, Gayatri Bajaj V. Jiten Bhalla : (2012)12 SCC 478 as well as oral submissions in the course of hearing by appearing in person are that, the learned Judge, Family Court failed to understand the spirit of the order made in C.R.P. No. 5663 of 2011, dated 23.12.2011 and scope of Section 25 of the Guardians and Wards Act, besides Section 7 of the Family Courts Act, in coming to the conclusion which is contrary to law and weight of evidence, that the trial Judge should have allowed the petition as prayed for by granting custody of children being the father and natural guardian and is in a better position to maintain them for overall development of the three children when compared to the mother of the children and in the welfare of the children, that the learned Judge should have seen that the application for restitution of conjugal rights filed by him was allowed against his wife who failed to join without justification for staying away with the children, that the trial Judge should have seen that the children were tutored to express as if their views which are not independent to be influenced by it for those are false statements because given at the instance of their mother, where continuation of children is not in their welfare, that now visiting rights providing the children are happily enjoying in his company in visiting British Library, amusement parks, exhibitions, shopping malls, restaurants, country -club, relatives houses and seminars and in particular the third child -male issue, presently aged 9 years, being comfortable in his company, that he is interested in joining him in Hyderabad Public School or Chaitanya Techno School with C.B.S.E syllabus being highly qualified having been distinction in M.Tech (I.T) and widely travelled and worked in leading companies in TATA, Blue Star, K.N.P.C. and as research engineer in I.I.T, Kanpur to guide the child in day to day academic prosperity, that having regard to the above, there are no valid grounds for the trial Court to negate the custody of the children to hand over to him being the father and natural guardian, that the observations of the trial Court are based on surmises by misreading of facts and law and also the oral and documentary evidence and in ignorance of the respondent -mother of the children is not taking proper care to the welfare of the children with inferiority complex and ego problem which conduct is not just in their upbringing under her custody and care that impedes their academic progress and hence to allow the appeal.

(3.) PERUSED the material on record. The parties are being referred to as they are arrayed in the trial Court for the sake of convenience.