Orissa High Court
(An Appeal Under Section 47 Of The … vs Sk. Khalid on 30 October, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
IN THE HIGH COURT OF ORISSA AT CUTTACK
GUAP No.9 of 2023
(An Appeal under Section 47 of the Guardians and Wards Act,
1890)
*****
Sk. Haider Ali .... Appellant
-versus-
Sk. Khalid .... Respondent
For Appellant : Mr. Soumya Mishra, Advocate
For Respondent : Mr. Abhishek Dash, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
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Date of Judgment 30.10.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. This Appeal has been filed under Section 47 of the
Guardians and Wards Act, 1890 (for brevity ‘the Act’) read with
Section 19(1) of the Family Courts Act, 1984 assailing the judgment
dated 16th March, 2023 passed in GMC No.57 of 2022, whereby
learned Judge, Family Court, Mayurbhanj at Baripada allowed an
application under Section 25 of the Act filed by the Respondent-father
for custody of his minor daughter (for brevity ‘minor’) has been
granted directing the Appellant (maternal uncle) to handover the
custody of the minor to the Respondent within one month from the
date of the judgment.
GUAP No.9 of 2023 Page 1 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 2 //
3. Parties to the proceeding before learned Judge, Family
Court are governed under their personal law, i.e., Mohammedan Law.
4. Brief statement of facts necessary for adjudication of the
Appeal are as under: –
4.1 The Respondent got married to one Ayesha Khatoon, the
sister of the Appellant on 31st January, 2017 as per the customs under
Mohammedan Law. The couple blessed with a son and a daughter. On
5th July, 2022, wife of the Respondent was admitted in Pandit
Raghunath Murmu Medical College and Hospital, Baripada.
Subsequently, she was referred to SCB Medical College and Hospital,
Cuttack. However, she breathed her last on 24th July, 2022 at Sum
Hospital, Bhubaneswar. After observing necessary formalities at the
hospital, the Respondent brought the corpse of his wife to Baripada
where she was buried as per their customs.
4.2 It is alleged by the Respondent that taking advantage of the
situation, the Appellant forcibly took away the minor with the
assistance of Police. Later, the Respondent and his father were called
to the Police Station where they were allegedly compelled to execute a
document not to claim the custody of the minor or to file any case in
future for her custody. As the Appellant did not hand over the custody
of the minor to the Respondent, he filed GMC No.57 of 2022 under
Section 25 of the Act claiming custody of the minor.
4.3 The Respondent stated, inter alia, that he has sufficient
means to look after the minor. His family consisted of his son who
desperately waiting for his sister who is the minor and is missing her
GUAP No.9 of 2023 Page 2 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 3 //
company. The Respondent has also his parents and unmarried
daughter living with him. Thus, the welfare of the minor would be
best achieved being with the Respondent. The Respondent being the
father is the natural guardian and has no disqualification and is not
unfit to take custody of the minor. The minor was with her parents
from her birth. She was illegally removed from the custody of her
natural guardian, the Respondent. On the other hand, the Appellant
did not have sufficient means to look after the minor, as he has a
minor daughter to look after. The family of the Appellant did not have
sufficient means to meet with the expenses of the minor.
4.4. The Appellant, who is the maternal uncle filed his
objection/written statement stating that the marital relationship
between the Respondent and his spouse was not cordial. The
Respondent was always behaving roughly with his wife. He was
interested for a second son and no sooner they were blessed with the
minor, the Respondent inhumanly treated his wife. As a result, the
wife of the Respondent suffered from various diseases and died
prematurely as Sum Hospital, Bhubaneswar. Although the wife of the
Respondent was at Sum Hospital, Bhubaneswar, it was not informed
to the Appellant or his family members. After getting information
from other sources, the Appellant attended his sister at Sum Hospital
and borne the entire expenses of her treatment. After the death of his
sister, the Appellant lodged an FIR against the Respondent alleging
negligence and cruelty towards his wife. At the Police Station, an
agreement of understanding was executed wherein the Respondent
undertook not to claim custody of the minor. It was also agreed that
GUAP No.9 of 2023 Page 3 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 4 //
the Respondent would not file any petition before the competent Court
of law to claim custody of the minor. It was further alleged that the
Respondent’s father was old and ailing person of 72 years and his
mother was of 66 years. The unmarried sister of the Respondent was
mentally unsound. Thus, the Respondent was unable to take care of
the minor for which out of his own volition, he executed an agreement
at the Police Station, as aforesaid. It was also stated by the Appellant
that he himself is a man of means and can maintain the minor along
with his minor daughter. It is also claimed that welfare of the minor
can be best achieved being with her maternal uncle, the Appellant.
Hence, he prayed for dismissal of the petition filed by the Respondent
claiming custody of the minor.
4.5 Learned Judge, Family Court allowed the application filed
by the Respondent under Section 25 of the Act directing the Appellant
to handover the custody of the minor to the Respondent within the
period of one month from the date of the judgment.
5. It also appears that the Respondent has filed Execution Case
No.6 of 2023 for implantation of the judgment, which is sub-judice
before learned Judge, Family Court, Baripada. IA No.9 of 2023, has
been filed in this Appeal enclosing copy of the order dated 3rd August,
2023 passed in aforesaid Execution Case, wherein, learned Judge,
Family Court, Baripada directed the IIC, Baripada Town Police
Station to rescue the minor from the custody of the Appellant
following due procedure and handover her custody to the Respondent.
GUAP No.9 of 2023 Page 4 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 5 //
6. Mr. Mishra, learned counsel for the Appellant submitted
that learned Judge, Family Court committed patent error of law in
adjudicating the application as one under Section 17 of the Act for
appointment of a guardian, although it was filed under Section 25 of
the Act for custody of the minor. The question of guardianship of the
minor is distinct from custody of the minor as held in the case of
Ather Hussain Vs. Syed Siraj Ahmed and others; (2010) 2 SCC 654.
Though a father is the natural guardian in both Mohammedan Law as
well as the Act, but learned Judge, Family Court unnecessarily delved
into the question of guardianship of the minor. While adjudicating the
matter, learned Judge, Family Court discussed the ingredients of
Section 17 of the Act, which refers the matter to be considered by the
Court in appointing guardian. The provision under Section 19 of the
Act makes it clear that unless a father is found, in the opinion of the
Court, to be unfit, he is the only person entitled to be appointed /
declared as guardian of the minor. No such restriction is available in
Section 25 of the Act while determining the custody of the minor.
Two ingredients are to be satisfied to consider the custody of the
minor; viz; firstly, the ward ‘leaves’ or is ‘removed’ from the custody
of a guardian and secondly, if it is in the opinion of the Court, return
of the ward to the custody of the guardian is required for his/her
welfare. Thus, the welfare of the ward is to be borne in mind to
determine his/her custody. Learned Judge, Family Court misdirected
itself in considering the nature of the application made by the
Respondent observing that once the father is found to be fit, the
maternal uncle is not entitled to be custodian of the minor and directed
to handover her custody to the Respondent.
GUAP No.9 of 2023 Page 5 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 6 //
7. Emphasising that the welfare of the minor can be best
achieved being in custody of the Appellant, Mr. Mishra relied upon
the ratio in the case of the Anjali Kapoor (Smt.) Vs. Rajiv Baijal;
(2009) 7 SCC 322, wherein, the Hon’ble Supreme Court referring to
the case Walker Vs. Walker and Harrison; 1981 New Ze Recent Law
257, wherein, it is held as under:-
“Welfare is an all encompassing word. It includes
material welfare; both in the sense of adequacy of resources to
provide a pleasant home and a comfortable standard of living
and in the sense of an adequacy of care to ensure that good
health and due personal pride are maintained. However, while
material considerations have their place they are secondary
matters. More important are the stability and the security, the
loving and understanding care and guidance, the warm and
compassionate relationships that are essential for the
full development of the child’s own character, personality and
talents.”
7.1 Mr. Mishra, learned counsel for the Appellant also relied
upon the following case laws to buttress his contention that welfare of
the minor is the paramount consideration while determining his/her
custody.
(i) Sheoli Hati Vs. Somnath Das; (2019) 7 SCC 490;
(ii) Abdulsattar Husen Kudachikar Vs. Shahina Abdulsattar
Kudachikar; AIR 1996 Bom 134;
(iii) Rosy Jacob Vs. Jacob A. Chakramakkal; (1973) 1 SCC 840;
(iv) Nil Ratan Kundu and another Vs. Abhijit Kundu; (2008) 9
SCC 413;
8. In the instant case, the custody of a minor female child is in
question. Hence, Mr. Mishra, learned counsel for the Appellant
referred to Sections 352 and 353 of the Mulla’s Mohammedan Law,
which are stated hereunder:-
GUAP No.9 of 2023 Page 6 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33// 7 //
“Sec.352. Right of mother to custody of infant children.- The
mother is entitled to the custody of (hizanat) of her male child
until he has completed the age of seven years and of her female
child until she has attained puberty. The right continues
though she is divorced by the father of the child, unless she
marries a second husband in which case the custody belongs to
the father.
353. Right to female relations in default of mother.–Failing
the mother, the custody of a boy under the age of seven years,
and of a girl who has not attained puberty, belongs to the
following female relatives in the order given below:–
1) mother’s mother, how highsoever;
2) father’s mother, how highsoever;
3) full sister;
4) uterine sister;
5) consanguine sister;
6) full sister’s daughter;
7) uterine sister’s daughter;
8) consanguine sister’s daughter;
9) maternal aunt, in like order as sisters; and
10) paternal aunt, also in like order as sisters.”
He, therefore, submitted that in absence of the mother, the custody of
a girl who has not attained puberty belongs to the family and relatives
as prescribed in Section 353 of the Mulla’s Mohammedan Law.
Section 353 of Mohammedan Law does not make any provision to
give custody of a minor girl child to the father in absence of her
mother. As such, he submitted that Respondent-father is not entitled to
the custody of the minor under personal Law. In support of his
submission, Mr. Mishra, learned counsel relied upon the case of
Siddiq-Un-Nissa Bibi Vs. Nizam-Uddin Khan and ors; AIR 1932
All 215 in which it is held as under: –
“A question has been raised before us whether the right under
the Mohamedan Law of the female relation of a minor girl
under the age of puberty to the custody of the person of the girl
is identical with the guardianship of the person of the minor or
whether it is something different and distinct. The right to theGUAP No.9 of 2023 Page 7 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33// 8 //
custody of such a minor vested in her female relations, is
absolute and is subject to several conditions including the
absence of residing at a distance from the father’s place of
residence and want of taking proper care of the child. It is also
that the supervision of the child by the father continues in spite
of the fact that she is under the care of her female relation, as
the burden of providing maintenance for the child rests
exclusively on the father.”
He also relied upon the case of Ather Husain (supra), wherein, it is
held as under: –
“42. …….In our opinion, as far as the question of custody is
concerned, in the light of the aforementioned decisions, the
personal law governing the minor girl dictates her maternal
relatives, especially her maternal aunt, shall be given
preference. …….”
In the case of Poolakkal Ayisakutty v. Parat Abdul Samad; AIR
2005 Ker 68 in which, it is held as under:-
“4. We are of the view when the question of the custody of the
child is involved, the primary consideration which weigh with
the Court is the welfare of the child. Legal position is well-
settled by a catena of decisions of this Court as well as that of
the Apex Court. Reference may be made to the decisions of the
Apex Court ……… It is settled principle of law that custody
orders, by their very nature, can never be final but a challenge
should only be made if it is in the paramount interest of the
child concerned. Custody of a minor is also a matter involving
sentimental attachment. Such a matter is to be approached and
tackled carefully. A balance has to be struck between the
attachment and sentiments of the parties towards the minor
children and the welfare of the minors which is of paramount
importance. Principles exported by Personal Law and the
provisions referred to hereinbefore cannot read in isolation
and be divorced under the provisions of the Guardians and
Wards Act. The overriding consideration is welfare of the child
and the Personal Law would yield the provisions of
the Guardians and Wards Act. …..”
GUAP No.9 of 2023 Page 8 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 9 //
He further relied upon the case of J. Sadiq Batcha and another Vs. A.
Mohamed Kasim and another; 2014 (1) CTC 459, wherein, it is held
as under : –
“6. As rightly pointed out by the learned Senior Counsel, a
close reading of Section 17 of the Act makes it clear that, while
appointing or declaring the guardian of a minor, the Court
shall be guided by what consistently with law to which the
minor is subject. Sub-clause (2) of the Section further makes it
clear that the Court shall give prime importance of the welfare
of the minor by taking into account the age, sex and religion of
the minor. Therefore, when the provision contained in the
General Law is vividly clear that the Court, in such cases,
shall apply the Law to which the minor is subject, in this case,
the issue shall have to be dealt with in the light of the
Mahomedan Law. Principles exported by Personal Law and
the provisions contained therein cannot be read in isolation
and be divorced under the provisions of the Guardian and
Wards Act, for, the Personal Law would yield the provisions of
the Guardian and Wards Act.
7. xx xx xx
8. Though Section-352 speaks about mother’s Hizanat
(custody) of the minor i.e., in the case of male child until he
has completed the age of 7 and regarding female child till she
attains puberty, in the present case, since the mother is no
more, it is better to look into Section 353 which gives direct
answer to the issue on hand. Section-353 contains a list of
female relations in default of mother, and it says that failing
mother, the custody of a girl who has not attained puberty,
goes to the persons listed therein and the first person in the list
is mother’s mother, how highsoever. Therefore, when the
minor is a tender-child, the custody given to the respondents in
consonance with what is provided under Section 353 cannot be
found fault with.”
He, therefore, submitted that in view of the categorical
pronouncements, the personal law, i.e., Mohammedan Law governing
custody of minor cannot be read in isolation and divorced under the
provisions of the Guardians and Wards Act, as the Personal Law
would yield to the provisions of the Guardian and Wards Act keeping
GUAP No.9 of 2023 Page 9 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 10 //
in mind the welfare of the minor, which is the paramount
consideration. Thus, the legal right of a party seeking custody of a
minor cannot override the welfare of the minor. In the instant case, the
Appellant-maternal uncle took custody of the minor when she was
7(seven) months old. At the time of filing of the petition for custody
of the minor by the Respondent-Father, she was 3(three) and half
years old. Thus, removal of the child from the custody of the
Appellant would certainly affect her intellectual, psychological and
physical growth, which cannot be said to be in the welfare of the
child. The said principle is elaborated in the case of Ather Hussain
(supra). Relying upon the case of Rosy Jacob (supra), Mr. Mishra,
learned counsel further submitted that removal of custody of the minor
girl from the female relation as per Section 353 of Mulla’s
Mohammedan Law was necessitated for her welfare. But learned
Judge, Family Court adopted an erroneous approach in considering the
fitness of the father/natural guardian to have her custody as a matter of
right. The minor is in the custody of her maternal uncle since she was
seven months old. She is accustomed to the environment and
atmosphere where she is residing at present. Stability and consistency
in the affairs and routines of a child plays a pivotal role in determining
custody of the child. Any dislocation may cause emotional strain,
which is not the object and spirit of Section 25 of the Act. Except
advocating his legal right, the Respondent has not made out any case
to take custody of the minor. Thus, it is prayed that the impugned
judgment is not sustainable in the eye of law and is liable to be set
aside. The minor should be allowed to stay with her maternal uncle,
which is in the best interest and welfare of the child.
GUAP No.9 of 2023 Page 10 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 11 //
9. Mr. Dash, learned counsel for the Respondent-father did not
dispute the factual position as stated above. He, however, submitted
that the Appellant-maternal uncle of the minor had never visited his
sister (mother of the minor) when she was admitted in Sum Hospital,
Bhubaneswar for her treatment. The Appellant in his cross-
examination has also admitted the same. It was his submission that the
minor since her birth was along with her sibling and parents till the
death of her mother. On the next date of the death of her mother, she
was forcibly removed by the Appellant from the custody of the
Respondent-father with the assistance of Police. There is no allegation
in the written statement filed by the Appellant that the minor was not
looked after properly by the Respondent. There is also no
disqualification of the Respondent making him unfit as per Section 19
of the Act to have the custody of the minor. Learned Family Court
considering the principles of Hizanat (custody) and keeping in mind
the principles enumerated in the Mohammedan Law held the petition
under Section 25 of the Act filed at the behest of the Respondent-
father as maintainable. He further answering Issue No.2 held that the
Respondent-father is entitled to claim custody of the minor. He
submitted that welfare of the child is paramount consideration to
determine its custody. The Respondent resides with his parents, an
unmarried sister and his minor son (sibling of the minor). Thus,
welfare of the minor can be best achieved being in custody of the
Respondent-father, who is also her natural guardian.
10. It is further submitted by Mr. Dash, learned counsel for the
Respondent that learned counsel for the Appellant advanced an
GUAP No.9 of 2023 Page 11 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 12 //
argument that learned Judge, Family Court misconstrued the petition
under Section 25 of the Act to be one for declaring the Respondent-
father as the guardian of the minor. Such an argument would not be
sustainable, inasmuch as, the question of guardianship of the minor
has to be gone into to determine the custody of the minor in view of
Section 25 of the Act. The instant case is squarely covered under the
provisions of Section 25 of the Act. The child was forcibly removed
from the custody of the natural guardian, namely, the Respondent
when she was only seven months old. There is nothing on record to
suggest that the Respondent is unfit to be the guardian of the minor.
Considering the matter from any angle, it will be for the welfare of the
minor to return to the custody of her natural guardian, namely, the
Respondent. Section 352 of the Mulla’s Mohammedan Law stipulates
that a mother is entitled to the custody (Hizanat) of her male child
until he has completed the age of seven years and of her female child
until she attains puberty. The right continues though she is divorced
by the father of the child, unless she marries a second husband in
which case the custody belongs to the father. In the instant case,
mother of the minor though not divorced by the Respondent-father,
but died untimely when the minor was in their custody. Thus, the
Respondent-father is entitled to the custody of the child. Further,
Section 353 of Mulla’s Mohammedan Law stipulates that failing the
mother, custody of a boy of seven years and a girl, who has not
attained puberty, belong to the following female relatives more fully
enumerated therein. The Appellant-maternal uncle is not amongst
them. Thus, he is liable to return the custody of the minor under the
personal Law to her father. It is more so in view of Section 355 of the
GUAP No.9 of 2023 Page 12 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 13 //
Mulla’s Principles of Mohammedan Law, which includes father qua
male paternal relations. In any case, personal Law is of no assistance
to the Appellant, as he neither comes under the female nor male
relations entitled for custody in deprivation of natural guardian.
11. A natural guardian would always act in the child’s welfare
unless otherwise proved. In absence of any material to the contrary
available on record, there is no reason to deprive the minor from the
love, affection, sentiment, emotion and congenial understanding of her
own father, brother and grandparents as well as from growing up in
the household to which she belongs. In support of his contention,
Mr. Dash, learned counsel for the Respondent relied upon the case
of Siddiq-un-Nissa Bibi Vs. Nizam-Uddin Khan and others; AIR
1932 All 215. He also relied upon the case of Rafiq Vs. Bashiran,
reported in AIR 1963 Raj 239 and submitted that when the father of a
Mohammedan minor girl is living and there is nothing to show that he
is unfit to be the guardian he is entitled to retain custody of the minor
as against the preferential right under the Mohammedan Law.
11.1 It is further submitted that no female relation of the minor
was examined by the Appellant to show that they are really interested
to retain the custody of the minor and act in the welfare of the minor.
On the other hand, mother of the Respondent was examined on his
behalf as PW-2, who categorically stated that she is interested to look
after and take care of the minor. Admittedly, the Appellant is not
entitled either under the Act or under the personal Law to retain the
custody of the minor. No female member of his family was also
examined to establish that they are really interested to retain custody
GUAP No.9 of 2023 Page 13 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 14 //
of the child and act for her welfare. Only because the minor is with
her maternal uncle since she was seven months old and at present, she
is more than three years old; that cannot be a ground to refuse the
prayer to return the custody to her father.
12. Mr. Dash, learned counsel for the Respondent also relied
upon the case of Rosy Jacob (supra) and submitted that undoubtedly
‘guardianship’ and ‘custody’ are two different components under
Law. While ‘guardian’ means a person having care of the person to a
minor or of his property or both, as per Section 4(2) of the Act; the
‘custody’ though not defined under the Act, in ordinary parlance
means under whose care the minor resides. Custody does not only
include the de facto but a constructive custody. Being the natural
guardian, Act vests right of custody of the minor on the Respondent
by virtue of Section 24 of the Act. In case of removal of ward/minor
from the custody of a guardian, an application under Section 25 of the
Act would be maintainable.
13. In one hand, none of the female members of the Appellant’s
family came forward to exhibit their interest to look after welfare of
the minor; on the other, in the family of the Respondent-father two
female members, namely, the mother as well as unmarried sister of the
Respondent is available to take care of the minor girl. Mother of the
Respondent, namely, PW-2 has also deposed before learned Judge,
Family Court and expressed her keen interest to look after the welfare
of the minor. By retaining the custody, the Appellant is depriving the
minor from the love, affection, mental attachment of her father,
sibling (elder brother), grandmother as well as other members of the
GUAP No.9 of 2023 Page 14 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 15 //
family in which she is born. Thus, learned Judge, Family Court has
not committed any error in allowing the petition filed by the
Respondent under Section 25 of the Act.
14. In response to the case laws cited by learned counsel for the
Appellant, Mr. Dash, learned counsel for the Respondent submitted that
in the case of Isar Ahmed Vs. Azazul Hussain Ahmad and another;
2019 SCC OnLine All 5315, the dispute was with regard to custody of
the minor between her father and mother, wherein, father was denied
custody holding that minor’s welfare would not be served if the custody
is given to its father. However, it has discussed the principle and
adjudicated the issue of custody, which is exclusively and solely based
on welfare of the minor. While determining the custody of a minor, the
Court should at the first instance determine the guardianship of the
minor applying the negative test, i.e., whether a person is unfit to be a
guardian under Section 19(1)(b) of the Act. The Court while making
such determination will be guided by the parameter set out under
Section 17 (1) of the Act, viz., personal Law and circumstance like
welfare of the minor as well as Section 17 (2) of the Act with regard to
age, sex and religion of the minor, the character and capacity of the
proposed guardian and its nearness of kin to the minor, the wishes, if
any, of a deceased parent and any existing or previous relations of the
proposed guardian with the minor or his property.
15. In the instant case, there is nothing on record to deny return
of custody of the minor to the Respondent-father. As such, learned
Judge, Family Court, Baripada has not committed any error in
GUAP No.9 of 2023 Page 15 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 16 //
allowing the petition under Section 25 of the Act. He, therefore, prays
for dismissal of the Appeal being devoid of any merit.
16. On consideration of the submissions made by learned
counsel for the parties and on perusal of the pleadings of the
respective parties, the question crops up for consideration in this
Appeal is.–
Whether the custody of the minor should continue
with the Appellant and whether learned Judge,
Family Court has committed any error in directing
the Appellant to handover the custody of the minor to
the Respondent?
17. It is not disputed that the parties are governed under the
Mohammedan Law. Initially, the minor (minor girl) was with her
parents from her birth. When she was only seven months old her
mother (wife of the Respondent) died. Since then, she is in custody of
the Appellant. At the time of filing of the petition under Section 25 of
the Act, the minor was only three and half years old. Respondent being
the father is the natural guardian of the minor. Appellant is her
matrimonial uncle. The minor has also a sibling (minor son of the
Respondent), who is residing with the Respondent since his birth. The
Respondent-father has his parents, an unmarried sister living with him
besides his minor son (sibling of the minor).
18. It is alleged in the petition under Section 25 of the Act
that the minor was forcibly removed from the custody of the
Respondent by the Appellant with the assistance of the Police just
GUAP No.9 of 2023 Page 16 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 17 //
on the next day of death of his wife. In the objection, it is alleged by
the Appellant that the Respondent out of his own volition handed
over custody of the minor to him and had also executed an
agreement before the Police not to claim custody of the minor in
future. It was also alleged that the Respondent agreed not to file any
case before any Court of Law claiming custody of the minor in
future. In the aforesaid backdrop, the issue as aforesaid has to be
decided.
19. Learned Judge, Family Court discussing the pleadings of
the parties and evidence available on record, held that the
Respondent is entitled to the custody of the minor and directed the
Appellant to hand over custody of the minor to the Respondent
within one month from the date of the judgment impugned herein.
In order to consider the entitlement of the parties to the custody of
the minor, relevant provisions of the Act are to be carefully gone
through. Section 25 of the Act deals with entitlement of the
guardian to the custody of the ward. It provides that if a ward leaves
or is removed from the custody of a guardian of his person, the
Court if it is of the opinion that it will for the welfare of the ward to
return to the custody of his guardian may make an order for his
return. Section 25 of the Act further emphasizes that for the purpose
of enforcing the order, the Court may cause the ward to be arrested
and to be delivered to custody of the guardian. In the instant case,
the minor was with the Respondent (guardian) and his wife from her
birth. She was removed from the custody of the Respondent and
was handed over to the Appellant when she was seven months old
GUAP No.9 of 2023 Page 17 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 18 //
only. Allegation of forcible removal of the minor from the custody
of the Respondent-father and handing over her custody to the
Appellant (maternal uncle) is of little significance in the instant
case, as admittedly the minor was removed from custody of her
guardian and was handed over to the Appellant. Admittedly, the
Appellant has never been declared as guardian of the minor.
Ordinarily, the guardian should be the custodian of the minor,
unless the guardian is held to be unfit by any competent Court of
Law to be appointed as guardian. No such declaration appears to
have been made in respect of the Respondent. But in the instant
case, the peculiarity is that the parties are governed under their
personal Law, i.e., the Mohammedan Law. Section 352 of Mulla’s
principles of Mohammedan Law provides that a mother is entitled
to the custody (Hizanat) of a minor male child until he completed
the age of seven years and in respect of female minor child until she
attained puberty. The right continues though she is divorced by the
father of the child, unless she marries a second husband in which
case the custody belongs to the father. Thus, the provision makes it
clear that in all cases, mother is the custodian of a male child until
he has completed seven years and a female child until she attains
puberty. In the instant case, the minor (female child) was with her
parents till the mother died. The question of divorce of the mother
of the minor by her father does not arise, as mother of the minor
died in Sum Hospital, Bhubaneswar due to her illness. The intent
and purport of Section 352 of Mulla’s principles of Mohammedan
Law indicates that in absence of mother, the father would be the
guardian of the ward. But Section 353 of the said Law provides the
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Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 19 //
right to custody of a minor child to the female relations in default of
mother. It provides as under:-
1) mother’s mother, how highsoever;
2) father’s mother, how highsoever;
3) full sister;
4) uterine sister;
5) consanguine sister;
6) full sister’s daughter;
7) uterine sister’s daughter;
8) consanguine sister’s daughter;
9) maternal aunt, in like order as sisters; and
10) paternal aunt, also in like order as sisters.”
Undoubtedly, the Appellant is not a female relation of the mother of
the minor as enumerated in Section 352 of Mulla’s Mohammedan
Law. The Appellant in his objection, does not dispute that the minor
is in his custody from the next date of death of her mother
(Appellant’s sister). As propounded by the aforesaid case laws, the
principle for custody of a minor child under the personal Law shall
not be read in isolation and divorced from the provisions of
Guardians and Wards Act, which confers the Court a discretion to
return the custody of a minor to his guardian, who leaves or removed
from his custody in appropriate cases where Court thinks that
exercise of such a discretion is necessary for welfare of the ward.
20. Thus, welfare of a child is the paramount consideration to
determine the custody of the ward (minor child) including a female
child.
21. In the case of Anjali Kapoor (supra), the Hon’ble Supreme
Court referring to the observation made in the case of Walker Vs.
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Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 20 //
Walker and Harrison (supra) held that ‘welfare’ includes material
welfare both in sense of adequacy of resources to provide a pleasant
home and a comfortable standard of living. While considering the
welfare of the ward, adequacy of care to ensure that good health and
due personal pride should be given due weightage. More important
are the stability and the security, the loving and understanding care
and guidance, the warm and compassionate relationships that are
essential for the full development of the child’s own character,
personality and talents. Those aspects are to be given due weightage
while considering the welfare of the child. There cannot be any doubt
that the provisions of personal Law are supplemental to the
substantive law in determining custody of the child. The provisions
under the personal Law are to be read in harmony with the
substantive Law, i.e., Guardians and Wards Act and in case any
provision of personal Law is repugnant to the substantive law, the
substantive Law would prevail and be guiding factor. In all cases, the
entitlement of a party to the custody of the ward under any law yields
to the welfare of the child. No doubt, the Respondent being the
natural guardian is entitled under Law to claim custody of the minor.
Further, the Appellant has not yet been declared as the guardian of
the minor. But custody of a child presupposes constructive custody
and not de facto custody. Although the Appellant in his written
statement/objection to the petition under Section 25 of the Act has
not specifically averred about his family members, but from the
materials available on record, it appears that the Appellant has his
wife, minor daughter and his parents living with him. Admittedly,
none of the female members of the Appellant’s family came forward
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Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 21 //
to adduce evidence to take care of the minor. On the other hand,
mother of the Respondent was examined as PW-2 and categorically
deposed that she is interested to look after and take care of the minor.
It is borne out from the record that the Appellant was working as a
medicine representative and let out a car on rent from which he was
earning his livelihood. On the other hand, the Respondent has a
mobile shop and has household properties at Baripada part of which
is given on rent. The Respondent has also ancestral landed property
at Kakatpur in the district of Puri from which a constant income was
being generated. Thus, it appears that the minor will get a better care
and protection being in the family of the Respondent.
22. An argument was advanced by learned counsel for the
Appellant that the Respondent had executed an agreement in the
Police Station not to claim custody of the minor. He also agreed not
to file any case claiming custody of the minor. When it is alleged by
the Appellant that the Respondent voluntarily handed over the
custody of the minor to the Appellant on the next day of death of his
wife (mother of the minor), it is not understood as to why an
agreement was required to be executed that too in the Police Station.
In any event, the agreement in question was not admitted in
evidence before learned Judge, Family Court. Thus, no weightage
can be given to such agreement, if any, executed between the
Appellant and the Respondent. The minor has a sibling who was
aged about five years old on the date of filing of the application
under Section 25 of the Act. The Respondent has also his unmarried
sister and parents living with him out of whom, mother of the
GUAP No.9 of 2023 Page 21 of 23
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 22 //
Respondent being examined as PW-2 expressed her interest to take
care of the minor. No material was produced before learned Judge,
Family Court except some bald pleadings to establish that welfare
of the child cannot be achieved being in the family where she is
born. The brother of the minor is also missing her company
23. It is not disputed that the Respondent is not unfit to be the
guardian of the minor, as provided under Section 19 of the Act.
Section 17 (2) of the Act provides that while considering the welfare
of the minor, the Court shall have due regard to the age, sex and
religion of the minor, the character and capacity of the proposed
guardian and his nearness of the kin of the minor, wishes of any of
the deceased parents or any existing or previous relations of the
proposed guardian and the minor or his property. Discussing the
above learned Judge, Family Court, Baripada proceeded to
adjudicate fitness of the Respondent-Father to be the guardian.
Thereafter, it proceeded to adjudicate rival claims of the parties for
the custody of the minor. Thus, in order to determine the custody of
the minor learned Judge, Family Court was required to go into the
question of guardianship of the minor while determining the issue of
her custody. In the instant case, keeping in mind the age, sex and
religion of the minor as well as the character and capacity of the
Respondent to act as the guardian of the minor, it can be safely said
that welfare of the minor can be best achieved if she is in the
custody of the Respondent. It is more so because none of the female
relations of the deceased wife, as available under Section 353 of
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Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
// 23 //
Mulla’s principles of Mohammedan Law, came forward to take care
and custody of the child.
24. There cannot be any quarrel over the case laws cited by
learned counsel for the parties. The case laws relied upon by learned
counsels for the parties propound the general principles for
consideration of custody of the minor. Thus, no further discussion
of the case laws relied upon by learned counsel for the parties is
required in the instant case. Keeping in mind the peculiarity in the
facts and circumstances of the case and the materials available on
record, together with discussions made above, I am of the firm
opinion that learned Judge, Family Court, Bairpada has committed
no error in directing the Appellant to handover custody of the minor
to the Respondent.
25. Accordingly, the Appeal being devoid of any merit stands
dismissed. However, in the facts and circumstances of the case there
shall be no order as to costs.
Issue urgent certified copy of the judgment on proper
application.
(K.R. Mohapatra)
Judge
High Court of Orissa, Cuttack
Dated the 30th day of October, 2024/s.s.satapathy
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