GOPAL RAO EKBOTE Vs. AHMAD MOHIUDDIN

JUDGEMENT

(1.) This is an appeal directed against the order of the Second Additional Chief Judge, City Civil Court, Hyderabad given on 15th April, 1964. It arises out of an application filed by Ahmed Mohiuddin under section 25 of the Guardians and Wards Act, hereinafter referred to as " the Act " for the custody of his four minor children. The essential facts are that Ahmed Mohiuddin had married one Izzat Fatima from whom he had two daughters and two sons, Khadija Nuzhat Fatima, Zahliuruddin Ahmed, Azmat Fatima and Rashiduddin Ahmed. Izzat Fatima, that wife died on 25th July, 1959. The wife along with the applicant and the four children was living with the 1st respondent, her mother, when she died. After her death the petitioner along with the four children continued to live with the 1st respondent It was, however alleged by the petitioner that the treatment given bv the respondents to the petitioners was insulting. He was therefore impelled to leave the house The children however lived with the 1st respondent their grandmother In spite of the petitioner providing for the maintenance of the four children the 1st respondent did not treat the petitioner kindly. The respondent also beat the petitioner several times. The petitioner further alleged that the 1st respondent is an old lady who did not stay permanently in her house but would be going now and then to her relations. She is not in a position to look after the four children properly. The children are therefore going without proper education. They are not provided with food and clothing suitable to their status and ages. The petitioner demanded their custody but the respondents denied. Respondents 2 and 3 are the sons of the 1st respondent. It is on these allegations that the petitioner sought the custody of his four minor children.

(2.) This petition was resisted by the respondents mainly on the ground that the petitioner had not provided maintenance even to his wife. The wife therefore had to file a maintenance application against him. The petitioner did not live with the 1st respondent for sometime, and then left. He married another woman. He was neglecting the children and was not providing maintenance. He had almost deserted the children. The 1st respondent therefore had to file a maintenance petition on behalf of the minors. M.C. No. 93 of 1959 before the 4th Magistrate, City Criminal Court, Hyderabad. The parties entered into an agreement during the pendency of that petition. The petitioner agreed to pay maintenance. He accordingly paid through 1st respondent but those payments were made irregularly. He has however stopped paying any maintenance amount to these children since 1 vears The 1st respondent therefore had to file another petition, M.P. No. 3 of 1963 before the II City Magistrate, City Criminal Court, Hyderabad for the maintenance of the children in October, 1962. Since then the petitioner has not paid any amount. He was ill-treating the wife and has failed to maintain the minors He has therefore disentitled himself to the custody of the minor children. It is not in the interests of the minors that they should be left in the custody of the father who is unfit to look after the children.

(3.) The learned Chief Judge, recorded the evidence adduced by the parties and marked the documents which they had produced. Upon this material, the learned Judge held that the petitioner as a natural guardian of the first two children, that is to say, Khadija Nuzhat Fatima and Zahiruddin Ahmed, has got preferential right for their personal custody as per the Moslem Law. Since the two other children are offender age, they cannot be given to the custody of the petitioner. The learned Judge therefore directed that they should be left in the custody of the 1st respondent. He accordingly allowed the petition partly and dismissed in regard to the other two children. It is this view that is now challenged by the respondents in C. M. A. No. 465 of 1964 and by the petitioner in his memorandum of cross- objections. The principal contention of Mr. Mohd. Jahangir Ali, the learned Counsel for the appellants, is that the learned Chief Judge has not considered the question of the welfare of the children which constitutes paramount consideration in cases under section 25 of the Act. On the other hand, the argument of Mr. Jalal Ahmed was that the petitioner being the father is the natural guardian under the Moslem Law. He cannot be deprived of his right to have the custody of male children who have completed their age of 7 and female children who have attained the puberty. He also contended that since it is not in the interests of the minors that they should be left with the respondents, the father has the right to reclaim the minor children. Now, according to the Hanafi doctrine to which tenets the parties belong, the mother is entitled to the custody of her children during the period of hizanat, that is, she is entitled to the custody of her son until he attains the age of 7 years and her daughter even as agaiast the husband of such daughter until the daughter attains puberty.