ALI MOHD BHAT Vs. YASMEENA

JUDGEMENT

(1.) CUSTODY of the ward sought by petitioner has been declined by the Court of learned Additional District Judge, Srinagar vide his order dated 9.8.2007.

(2.) PARTIES were married to each other, nuptial knot got untied due to strained relations but not before one child Urfa Jan was born, though marriage subsisted for eight years, but lack of reconciliatory approach has resulted in termination of the marriage bond. Resultantly only daughter born has become the victim of loosing the deserved parental affection. On dissolution of the marriage, Urfa Jan daughter remained in the custody of the respondent (mother). Appellant (father) filed application for custody of the ward claiming concern about well being and the educational career of the ward.

(3.) APPEARING counsel for the appellant first contended that learned trial court has not considered the material available on record more so has mis -appreciated the evidence. While buttressing this submission contended that the respondent is suffering from mental disability, whereas, learned trial court has not accepted the same. The submission is not well founded. Learned trial court after appreciating the evidence more particularly the deposition of Dr. Mushtaq Ahmad Margoob produced by the appellant has rightly concluded that respondent though having mental depression but same is not of the magnitude so as to effect the well being of the ward. In cross -examination said doctor witness has specifically deposed that with the type of depression respondent is suffering no adverse effect can be on the child and nor same can stand in the upbringing of the child. The said witness doctor has further deposed that due to the turmoil in the Valley lot of people are suffering from depression but however, they are able to take care of their business and also of their families. That apart learned trial Judge has also recorded the statement of respondent, perusal of which reveals as to how she shall be able to discharge the moral duties of maintaining her daughter, had her mental depression been of great magnitude then she could not have deposed the way she has deposed before the trial court and even learned trial judge has observed that he had an occasion to see the respondent and she was found normal, though learned counsel contended that the learned trial judge could not substituted his opinion against the opinion of the expert but the argument is fallacious because witness expert i.e. doctor has deposed on the same lines, even otherwise court is the expert of experts can easily judge on the physical appearance as to whether a person is physically and mentally sound.