FARHA Vs. KAMRUL ABDEEN

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 27-2-2006, passed by Judge, Family Court Ajmer, whereby Application No. 7/2003 filed by the appellant-wife, under Sections 10 and 25 of the Guardians and Wards Act, 1890 (for short 'the Act') for custody of the child was dismissed and Suit No. 16/03 filed by the respondent-husband for the relief of permanent injunction restraining the appellant-wife from forcibly snatching the child from his natural guardianship was decreed.

(2.) In the Petition No. 7/2003 filed by the wife for the custody of the child, it was averred that appellant and her younger sister were married on 17-1-2000 with the respondent and his younger brother at Ajmer according to Hanafi School of Mahommedan Law. But their in-laws were not satisfied with the dowry and hence started harassing and torturing both of them. On 31-10-2001, the appellant-wife gave birth to a male child named Naveed Abadeen but ever since her delivery, she was neither allowed to touch the child nor allowed to feed him. It has been further averred that on 21-3-2002 the wife tried to feed her child with the help of her younger sister but both the sisters were beaten by their husbands and other family members and they also demanded scooter, washing machine and Rs. 50,000/- in dowry and they were told that the child could be handed over to her only on meeting the aforesaid demand. Then, both the sisters were turned out of house in the night at about 8 p.m. while the child was retained by their in-laws.

(3.) The respondent and his parents were persuaded for one year to resolve the matter but on 5-4-2003 when both the sisters with their brother and other relatives went to their matrimonial home, the in-laws refused to accept them until their demand for dowry was not exceeded. The appellant-wife was also not allowed to meet her child and she was threatened to be divorced and even slapped by the husband. Their brother who went along with them was also beaten by the respondent, his brother and father. The appellant-wife has further averred that as per Mahommedan Law among the Hanafis the mother's hizanat of a male child ends with the completion of his seven years. "The mother and the grandmother, "says the Fatawat Alamgiri," are entitled to the custody of a boy until he is independent (of their care) that is, until he is seven years old. It was further averred that respondent and his mother and sisters are doing business of selling bangles in Langarkhan Dargah Bazar, Ajmer and as such the appellant can take care of the small child in proper way as the husband is also busy with his business of looking after the guest house and remains out for the whole day and comes late night. Therefore, it was prayed that the custody of the child be handed over to her.