MOHAMMAD ZAFARULLAH KHAN Vs. YASMEEN

JUDGEMENT

(1.) This Civil Revision Petition raises a question which is more often arising as a product of the present modem society the litigation for custody of minor children in broken marriages, which ensues the dissolution of marriage between the father and the mother and has impact of far reaching consequences on the psychology and sentiments of the unfortunate children, changing their course of life which results in depriving them of either the paternal or the maternal company and affection and thus leaving them in a quandary. The delicate task of evolving a solution to this multi facet human problem from the stand point of what is for the welfare of the minor in accordance with the provisions of the Guardians Wards Act (for short 'the Act'), in the circumstances of each case,'is entrusted to the Courts for passing a guardianship order or temporary custody and protection order.

(2.) The facts of this case He in a narrow compass and are not in dispute. The petitioner and the respondent are Hanafi Muslims. They were married according to Hanafi law in 1977. During wedlock two daughters named Sara Khan now aged about 9 years 4 months and Sana Khan (Asma) now aged 5 years 3 months (hereinafter referred to as 'minors') were born. The marital tie between the petitioner and the respondent was broken on May 18, 1986. The present litigation is an off shoot of the dissolution of marriaae. The petitioner filed the Original Petition, in the trial Court, under the Act for declaration of his guardianship and for custody of the minors. While so, he filed an application, LA. No. 1052/87 in the. said O.P. under Section 12 of the Act praying that the Court may be pleased to direct the respondent to give custody of minors twice a week to him and in his absence to his father. The learned trial Judge by his order dated Nov. 20, 1987 granted limited relief of permitting the father or in his absence the grand-father to take the minors on festival days of Ramzan and Bakrid between 10 A.M. and 4 P.M. It is against this order that the present Civil Revision Petition is riled by the father.

(3.) Mohd. Mohiuddin, the learned counsel for the petitioner, placing reliance on the decisions of this Court and other High Courts, strenuosly contends that the order under revision declining to grant interim custody of the minors to the petitioner twice a week, was passed only on the ground that he was abroad without considering the provisions of the Act, therefore, the order suffers from illegality in the exercise of jurisdiction. He submits that now the petitioner has come back for good and as he is the legal guardian of the minors, so not withstandingthe fact that the respondent is entitled to the custody of the minors till they attain puberty, under Hanafi law, he is entitled to the temporary custody of the minors twice a week. Equally strenuously Mr. Malla Reddy, the learned counsel for the respondent, submits that having regard to the background of the dispute between the parties, the allegations made in the main petition and the fact that the petitioner has already married second wife and is having a son, the children may not have proper treatment in the house of the petitioner and that in any event there is no guarantee that he would remain in Hyderabad, so he is not entitled to interim custody of the minors as prayed for.