In an important judgment, recently the Gujarat high court held that the custody of a minor chind cannot be denied to the mother merely because she is working mother. This judgment was delivered by a bench of Justices M.R. Shah and A.S. Supehia of Gujarat high court in the case of Faruq Ibrahimbhai Mulla v. Karishmabanu Anwar Hussain Qureshi [First Appeal No. 1876 of 2016, decided on September 30, 2016].
The custody of the minor son namely Rehan was with the mother. The appellant husband (father of the minor child) was working as an Associated Professor in Pramukh Swami Medical College in Pathology Department and the respondent wife (mother of the minor child) was working as Engineer SD Senior in Institute for Plasma Research situated at Gandhinagar.
It was submitted by the husband (father of minor child) that the respondent mother is a working woman and for morning to evening she will be busy with her work and therefore, she will not be able to devote more time for the welfare of the minor son. It was submitted that even other family members of the respondent, namely brother and sisters of the respondent mother are also not in a position to devote more time for the welfare of the minor son Rehan, as they are either doctor or serving. It is submitted that even the parents of the respondent mother are also old aged and they would also not be in a position to take proper care of the minor Rehan. It was submitted that when the appellant is well educated father and financially more sound than the respondent mother, and being the natural guardian of the child under Section 25 of the Guardian and Wards act, 1890, he will be able to take better care of the minor son Rehan and therefore, it will be in the larger interest of the minor Rehan that the permanent custody of the minor Rehan to the appellant father.
On the other hand, it was submitted by the respondent mother that on appreciation of evidence and even recording the statement of minor son Rehan and after ascertaining the wish of the minor son Rehan, the learned Family Court had given specific finding that it would be in the larger interest and welfare of the minor son Rehan if the custody of the minor son was continued with the respondent mother. It was further submitted that there is a specific finding recorded by the learned Family Court that except payment of Rs. 10,000/- per month towards maintenance that too pursuant to the order passed by the competent court, the appellant father at no point of time has taken care of the minor son. It was submitted that as such the respondent mother is taking care of the minor son Rehan on the field of education as well as on other extra curriculum activities. It was submitted that as such the respondent being a mother, she will be in a position to take proper care of the minor child than the appellant father.
In this regard, the high court held as under:
“So far as the case of the appellant father to give him permanent custody of the minor to him is concerned, it is required to be noted that both, the appellant father and respondent mother are working. The appellant is serving as an Associated Professor in Pramukh Swami Medical College in Pathology Department and respondent mother is serving as an Engineer SD Senior in Institute for Plasma Research situated at Gandhinagar. Therefore, the submission on behalf of the appellant husband that the respondent mother is working woman – mother, and therefore, she will not be in a position to spare time for the welfare of the minor child is concerned, the same has no substance and even the same could be applicable to the appellant also. In any case, on appreciation of evidence it has come on record that despite the fact that the respondent mother is serving as an Engineer SD Senior in Institute for Plasma Research situated at Gandhinagar she is taking care of the minor child. Merely because the respondent mother is serving, it cannot be assumed and/or presumed that she is not able to take care of the minor child. In these days, so many mothers are working and still they are taking care of the children. Therefore, merely because the respondent mother is working it cannot be presumed and/or presumed that she will not be in a position to take proper care of the minor child. If the aforesaid is considered, in that case when every father is serving it can be argued that as father is serving he will not be in a position to take proper care of the minor child. Under the circumstances, the submission on behalf of the appellant father that the respondent mother is serving and therefore, she will not be in a position to take proper care of the minor, has no substance.”
The high court further observed that:
“In the present case, both, the appellant father and respondent mother are well educated and serving. On appreciation of evidence and considering the fact that even the minor child is studying in a very reputed educational institute namely Mahatma Gandhi International School affiliated with Cambridge University and even the respondent mother is taking extra care in other outdoor activities also. Under the circumstances, when on appreciation of evidence the learned Family Court has specifically observed that paramount interest of the minor child would be to continue the custody of the child with the mother and thereafter when the learned Family Court has refused to grant permanent custody of the minor son Rehan to the appellant herein, it cannot be said that the learned Family Court has committed any error which calls for interference of this Court in exercise of appellate jurisdiction. It cannot be disputed that while considering the issue of custody of the minor child the paramount consideration is the welfare of the minor children which in the present case would be to continue the custody of the minor with the respondent mother.”
In view of these reasons, the high court refused to interfere with the order passed by the Family Court vide which the custody of the minor child was given to the mother, even though she was working.
