Mohammed Mushtaq G K vs. Ayesha Banu

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

ST
DATED THIS THE 21 DAY OF DECEMBER, 2021

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO.16885 OF 2021(GM-FC)

BETWEEN:

MOHAMMED MUSHTAQ G K,
S/O KHADER HUSSAIN,
AGED 39 YEARS,
R/AT OVAIS HOUSE NO.23,
ST ST
1 MAIN, 1 CROSS,
SOMESHWARANAGAR,
ST
JAYANAGAR 1 BLOCK,
BANGALORE – 560 011.
… PETITIONER
(BY SRI. MALLANGOUDA H,ADVOCATE)

AND:

AYESHA BANU,
W/O MOHAMMED MUSHTAQ G K,
AGED 37 YEARS, R/AT BIG BUILDING,
ND
GROUND FLOOR, 2 CROSS,
SHANTI NAGARA, ELLAMMA NAGAR,
RING ROAD, JAYADEVA CIRCLE,
NEAR BHOOTAPPA TEMPLE,
DAVANAGERE DISTRICT – 577 002.
… RESPONDENT
(BY SRI.NAYEEM PASHA S, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
TH
QUASH ANNEXURE-E DATED 17.12.2018, PASSED BY 4
ADDL.FAMILY JUDGE BANGALORE ON IA NO.3, IN G AND WC
NO.77/2017 IN SO FAR AS IT RELATES TO THE REFUSAL OF
THE INTERIM CUSTODY OF THE CHILD TO THE PETITIONER
IS CONCERNED AND ETC.,

THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:


R

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ORDER
This is a legal battle between the estranged spouses
for the custody of a minor child. petitioner, being the
husband of respondent is knocking at the doors of Writ
Court for assailing the order dated 17.12.2018, a copy
whereof is at Annexure-E whereby, the learned IV Addl.
Family Court Judge, Bangalore, having rejected his
application in I.A.No.3 for custody of the child in his G &
WC No.77/2017; however, has accorded visitation rights to
the petitioner.

2. The operative portion of the impugned order
reads as under:
“ORDER
I.A.No.3 filed by the petitioner under
section 12 of Guardians and Wards Act is
rejected.

However, the petitioner is granted
st rd
visitation rights/parenting time on 1 and 3
Saturdays of every month from 11.30 a.m. to
3.30 p.m. at Bengaluru Mediation Center in
respect of the minor child Mohammed Shahraan
Hussain.

The respondent is directed to bring the
st
child to Bengaluru Mediation Center on 1 and
rd
3 Saturdays of every month and handover the
child to the petitioner at 11.30 a.m. The
petitioner after exercising his visitation
rights/parenting time, shall return the child to
the respondent at 3.30p.m.”



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3. After service of notice, the respondent wife
having entered appearance in person, opposes the Petition
making submission in justification of the impugned order
and the reasons on which it has been structured; she also
narrates several tormenting acts allegedly perpetrated by
the petitioner and the same eventually leading to the
breakdown of marriage, despite there being a pretty child.

4. BRIEF FACTS:
(A) Parties are Sunni Muslims; both they are highly
educated; they have a greater exposure to the outer world;
petitioner – husband, is well placed in the employ of an
MNC namely Honeywell Technology Solutions, at
Bangalore; their nikah was solemnized on 30.4.2009 at
Bangalore; a child is born on 1.8.2013 and it is named as
Mohammed Shahraan Hussain; however, because of the
apparent temperamental differences, their marriage has
broken down and respondent’s* suit in O.S.No.154/2016
for the decree of its dissolution is pending; it hardly needs
to be stated that respondent’s * suit for dissolution of marriage
being pending, it is open to the petitioner-husband* to file a

Counter Claim too.

*Corrected Vide Chamber Order Dated 23.12.2021


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(B) Respondent-wife alleges dowry harassment and
claims to be an abject victim of physical assault & mental
cruelty; several civil & criminal cases filed by the parties
against each other are pending; their long list is as under:

(i) “Divorce petition in O.S.No.154/2016 pending
th
before 6 Addl. Family court at Bangalore.
th

(ii) G & WC.No.77/2017 pending before 6 Addl.
Family Court at Bangalore.
th

(iii) C.Misc.53/2017 pending before 6 MMTC at
Bangalore.
(iv) Defamation Suit O.S.No.8743/2017 pending
before CCH-65 at Bangalore.
nd
(v) C.C.No.27620/2018 pending before 2 ACMM at
Bangalore.
th
(vi) C.C.No.29577/2019 pending before 4 ACMM at
Bangalore.
nd
(vii) C.C.No.26059/2018 pending before 32 ACMM at
Bangalore.
(viii) Crl.Pet.No.721/2019 before this Hon’ble High
Court of Karnataka at Bangalore.”


(C) It is also relevant to state that after the
marriage, this couple had resided in the State of Arizona in
US for some time; petitioner is extensively traveled; he has
espoused a second lady and that a child too is begotten
from the second marriage; admittedly, he has been
residing with the second wife and a female child begotten
from her; he admits that he is happily living; the second
spouse has given an Affidavit that the child from the first
marriage should come & stay with this family.

(D) Petitioner has filed the subject G&WC seeking
exclusive custody of the child inter alia contending that it
is desirable to bring up the child in his exclusive custody

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since “he is in a better position to take care of his child
from a financial perspective and provide him the best
upbringing education and a complete family environment”;
he also contends “the respondent has neglected her duties
towards the minor child and the petitioner”; some wild
allegations are also made against her, which she has
stoutly denied in her Objections; she has made counter
allegations, is also true; petitioner’s claim for interim
custody of the child although has been rejected, the
learned Family Judge has granted visitation rights to him;
aggrieved by the denial of custody, petitioner is before this
court; the respondent appearing in person opposes the
petition.

5. Having heard the learned advocate for the
petitioner and the respondent party-in-person and having
perused the Petition Papers, this court declines indulgence
in the matter for the following reasons.
(a) In a society like ours, the disputes relating to
child custody by their very nature are complex, regardless
of religion or faith to which the parties belong; at times
they become complicated when the husband contracts
another marriage taking shelter under the umbrella of
personal law, i.e. Mohammedan Law or the like; the

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complication escalates to the higher level when a child is
born from the second marriage, and the husband starts
residing with the second family to the exclusion of the first
wife who is bringing up the child all alone; all this has
happened in this case, as borne out by the record.

(b) Respondent’s* civil suit in O.S No. 154/2016
seeking dissolution of marriage with the respondent is
pending before the learned VI Addl. Family Court at
Bangalore; the petitioner has filed his * written statement
resisting the same; as already mentioned above, petitioner
has been happily residing with the second wife & a pretty
daughter begotten from her; however, the respondent –
wife still continuing to be his first spouse, has been
residing separately and bringing up her son; of course
there is some assistance from her brother, Mr.Chaman
Shariff , is appreciable; from the long & multiple
interactions with the parties and the child, this court
gathers an impression that the child is being well groomed
by the respondent; child too wished to continue in the
custody of the respondent; petitioner all these days had
not cared to pay any amount for the maintenance of child,
although he has now paid Rs.70,000/-; his contention that
he is financially well placed and educationally superior
*Corrected Vide Chamber Order Dated 23.12.2021

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does not make much difference to the custody issue, when
all necessities of the child are duly met by the respondent-
mother.
(c) Petitioner’s main case i.e., G & WC No.77/2017
is still pending before the learned Family Judge; the
impugned order is only by way of interim arrangement and
thus obviously subject to outcome of the main matter;
learned Judge of the court below in his accumulated
wisdom & discretion has granted visitation rights to the
petitioner; in such circumstances a writ court exercising a
limited supervisory jurisdiction constitutionally vested
under Article 227 (petition quoting Article 226 being
irrelevant) cannot undertake a deeper examination of the
matter; if the custody of child is given to the petitioner-
husband as claimed, the respondent-wife would be all
alone whereas the petitioner will have two children at his
nd
hands along with 2 wife, as well; this offends the very
sense of justice, to say the least.

(d) Mother, step-mother & child : The submission
of learned counsel for the petitioner that his client has the
nd
2 wife who has filed an affidavit that petitioner & she
would take care of the child, is true; this is too poor a
solace to the biological mother; experience working on

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reason tells that ordinarily step-mothers would not be able
to take care of and show affection to the children which
their biological mothers instinctively would show; more
than a century ago (1911) in T.N.MUTHUVEERAPPA
CHETTY vs. T.R.PONNUSWAMI CHETTY, 13 IND CAS
16, what the Madras High Court observed is pertinent:
“…It would make it the duty of the Court to come
to its own conclusion as to what would best
promote the minor’s interests. It does not appear
that, excepting the respondent’s wife, there is any
female relation living with him competent to take
proper care of the child. It would be hardly safe to
presume that his wife, the child’s step-mother,
would be willing to do so… There is good reason
for believing that the maternal relations have
strong affection for the child…”

This is not to cast any aspersion on step-mothers in
nd
general and the 2 wife of the petitioner in particular;
when it comes to welfare of the child, one has to err on the
safer side, raising a presumption u/s. 114 of the Evidence
Act, 1872 “… regard being had to the common course of
natural events, human conduct …in their relation to the
facts of the particular case ”, than to put a tender child to
the possible risk of “step-motherly treatment.” What a
biological mother means to a child cannot be better
explained than by quoting “To my Mother” (1849) the
poem penned by an American poet Edgar Allan Poe:

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Because I feel that, in the Heavens above,
The angels, whispering to one another,
Can find, among their burning terms of love,
None so devotional as that of ‘Mother’ …

(e) Islamic law, juristic view & child custody:
Islamic jurist Asaf A.A.Fyzee in his Outlines of
th
Muhammadan Law , 5 Edn. Oxford at page 161 writes:
“ The custody of an infant child belongs to the mother”. He
quotes the following from another scholarly work ie.,
Baillie I, 435 :

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(f) Second marriage and diminution of child
custody rights of husband:

Now it has been well settled that the act of a Muslim
in espousing a second wife during the subsistence of first
marriage per se amounts to cruelty and that not only the
first wife can stay away from the matrimonial home but
seek divorce too on that ground vide Division Bench
decision of this Court in SRI YUSUFPATEL vs.
SMT.RAMJANBI, ILR 2021 KAR 746 ; if the wife can stay
away from the matrimonial home on the ground of second
marriage, it goes without saying that she can normally
retain the exclusive custody of her minor child; an
argument to the contrary would permit an unscrupulous
husband who contracts another marriage, to pressurize his
first wife to continue in the matrimonial home, eventually
retaining the child in his exclusive custody; this Court is
of a considered view that even the visitation rights of such
a father will diminish to a great extent, subject to all just
exceptions, reasons having already been stated above; this
court hastens to add that such a diminution in no way
absolves him from providing sustenance to the child.



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6. Before parting with this case, a brief account of
what transpired in the in-camera proceedings needs to be
stated: this court interacted with the parties and the child
on several occasions hoping that long time invested might
yield an amicable settlement; however, that did not
happen; the respondent wife graciously agreed to give up
all allegations made against the petitioner, for buying
peace; she also agreed to put an end to criminal cases as
well and asked this court to quash them straightaway;
however, petitioner was unjustifiably adamant and stuck
to his guns, though he has been happily residing with the
second wife and the child begotten from her; the
respondent has been bringing up the child single
handedly, though facing the cases filed by the petitioner;
more is not necessary to specify.

In the above circumstances, this writ petition being
devoid of merits is dismissed with a cost of Rs.50,000/-
(Rupees fifty thousand) only which the petitioner shall pay
to the respondent within one month, failing which all his
visitation rights granted by the impugned order stand
suspended.


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The learned Judges of the Courts who have been
dealing with the cases enlisted supra are requested to try
& dispose off the same preferably within a period of nine
months and report compliance to the Registrar General of
this Court.

Sd/-
JUDGE



Snb/