Mohd. Irshad (Maternal Grandparents vs Mr. Nadeem (Father) on 4 March, 2013
Smt Kanwar Khan, daughter of the Mohd. Irshad & Smt. Anwari Begum (petitioners) was married to the respondent no. 1 as per Muslim rites and customs on 25.11.2007 and out of their wedlock Master Rehan was born on 24.11.2008.
On 21.11.2010, Smt. Kanwar Khan had died and on the allegations of the petitioners that, the respondent no. 1 killed Smt Kanwar Khan by throwing her from the fourth floor balcony of her matrimonial home an FIR was registered against the respondents (Mr. Nadeem (Father) Naimuddin (Grandfather)). All the respondents i.e. father and paternal grandparents of the minor child were arrested and remained in the custody as under trials.
The interim custody of the minor child Master Rehan was handed over to the petitioners (Maternal Grandparents) by the Court by order dated 03.07.2010 when child was 1 ½ years old and since then child is residing with the petitioners (Maternal Grandparents).
By judgment dated 07.11.2012 all the respondents (father and paternal grandparents) were acquitted of all the charges.
When the matter came up of the hearing there was three applications to consider under Section 12 of Guardian and Wards Act 1890. The first application was filed on 18.08.2012 by the respondent no. 2 and 3, paternal grandparents for the minor child praying for his interim custody. The second application dated 11.10.2012 was filed by the respondent no. 1, father of the minor child praying for an order for visitation rights. The third application dated 24.01.2013 was filed by the respondent no.1, father of the minor child praying for his interim custody..
Now the minor child is aged 4 years and 3 months. The minor child has been living with the petitioners since 3.7.2010 i.e. for almost 2 years and 8 months.
Points of law raised
What will be the effect of the acquittal of the respondents (Father & Paternal Grandparents) in relation to the charged leveled against them by the petitioners with respect to the custody of the minor child? Whether it is in the interest and welfare of the minor child to let him remain in the custody of the petitioners or to hand over his custody to his father? The minor child did not appear to be able to form an intelligent preference to the Court.
What should be the approach of the Court while arriving at a prima- facie conclusion regarding his interest and welfare which is of paramount consideration in these matters?
Points of law decided
In all the judgments cited by the counsel for the petitioner, the Courts have consistently held that pendency of criminal prosecution against the father of the minor child of charges under Section 498A/304B IPC is a relevant consideration. If the pendency of such charges is a relevant consideration, then the acquittal of the father and paternal grandparents of such charges after a fair trial would also be relevant consideration. The respondents will therefore be entitled to claim the benefit of their acquittal of these charges when it comes to deciding interim custody of the minor child.
Facts held important in case
It is clear that the role of a father is very important for the upbringing of a minor child. The Hon'ble Supreme Court has also observed that the hatred of a child towards a parent can be caused by constant poisoning of his mind by the other parent. In the present case the minor child has lost his mother. Allegations of his maternal grandparents that his mother was killed by his father have not been believed by the Trial Court. During chamber interaction, the minor child was not looking in the direction of his father. The reason for such behavior of a child of such a tender age is not far to be found. He must be under the influence of his maternal grandparents of to try and convince this Court that he does not wish to reside with his father.
The minor child has suffered tremendous amount of trauma at a very young age. He has lost his mother. In normal circumstances, the minor child would be left with one parent. The facts of the present case reveal that minor child is in danger of losing his father as well. It has been put to the minor child that his mother has been killed by his father.
Though probably not the most important part of judgment but an opinion is expressed by judges: "Though father is unemployed but court does not deem it proper to deny custody of the minor child to the father on this ground.