SRI MOHAMMED ALTAF HUSSAIN vs SMT AYESHA BEGUM
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC-K:10870-DB
MFA No. 202451 of 2026
CNR: KAHC030094722026
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 6 DAY OF OCTOBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
MISCL. FIRST APPEAL NO.202451 OF 2026 (GW)
BETWEEN:
SRI. MOHAMMED ALTAF HUSSAIN
S/O LATE MOHAMMED AZMATHA HUSSAIN,
AGE: 40 YEARS, OCC: ASSISTANT OPERATIVE
(ELEC) KPCL RAICHUR THERMAL POWER STATION,
SHAKTINAGAR, R/O. H.NO. 12-6-338,
NEAR WATER TANK, LBS NAGAR, RAICHUR-584 101.
…APPELLANT
(BY SRI. PATIL SHANTABAI SUBHASH, ADVOCATE)
AND:
SMT. AYESHA BEGUM
W/O MOHAMMED ALTAF HUSSAIN,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O. C/O. ABDUL QHAYUM, H. NO. 106,
NEAR SAI BABA TEMPLE, SHAKTINAGAR,
TQ. AND DIST. RAICHUR-584 170.
…RESPONDENT
(BY SMT. SHRIDEVI B. ALBA, ADVOCATE)
Digitally
signed by
SHIVALEELA
D UDAGI
Location:
HIGH COURT
OF
KARNATAKA
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MFA No. 202451 of 2026
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THIS MFA IS FILED U/S 47 OF GUARDIANS AND WARDS
ACT, 1890, PRAYING TO ALLOW THIS APPEAL AND PLEASED TO
SET ASIDE THE JUDGMENT AND ORDER DATED 08.07.2026 IN
G AND WC NO.17/2024 PASSED BY THE PRL. FAMILY COURT
RAICHUR AND PLEASED TO DIRECTED TO RESPONDENT-WIFE
TO HAND OVER THE CUSTODY OF MY CHILDREN’S MOHAMMED
AHMED HUSSAIN AND FATIMA ZOHARA TO THE PETITIONER
HUSBAND, PERMANENTLY AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO )
This Miscellaneous First Appeal is directed against the
judgment and order passed in G & W.C.No.17/2024 dated
08.07.2026 on the file of the Principal Judge, Family Court
at Raichur (for short ‘the Family Court’) in dismissing the
petition filed by the appellant herein under Sec.25 of the
Guardians and Wards Act, 1890 (for short ‘the Act’).
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MFA No. 202451 of 2026
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2. The pertinent facts are that the appellant and
respondent married on 09.01.2025 in accordance with
Muslim customs and traditions at Mohammadiya Masjid,
Shakti Nagar, Raichur. The appellant and respondent lived
together for about 7 years and have twins, a male and a
female issue. It is stated that the appellant had earlier
married and divorced his wife. The respondent had also
married earlier and divorced her husband. Thereafter, the
appellant and respondent married; it was the second
marriage for both of them, and the marriage was
solemnised on 09.01.2025.
The appellant was working as an Assistant Mechanic
at Raichur Thermal Power Station (RTPS) on the date of
filing the petition. It is stated that the respondent is
uneducated. It is averred that due to differences of opinion
and misunderstanding, the respondent deserted the
appellant. The respondent filed a maintenance case
against the appellant in Criminal Miscellaneous
No.167/2020, and the Court awarded Rs.11,000/- as
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MFA No. 202451 of 2026
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maintenance for the children and the Respondent
collectively. The appellant alleges that the respondent is
avoiding custody of the twins and preventing the appellant
from visiting the children. It is further alleged that the
appellant was constrained to file a petition under Sec. 25
of the Act in G & W.C.No.17/2024 seeking permanent
custody of his children.
The Respondent, having appeared upon service of
summons, filed objections and denied the averments in
the petition. Notwithstanding the objections, the
respondent admitted that she and the appellant were
married and that the two children were born of their
marriage. The respondent alleged that the appellant had
contracted a third marriage and is living with the third
wife. The respondent therefore contended that the
stepmother would not care for the children if custody of
the twins were handed over to the appellant. The
respondent further stated that as the appellant failed to
maintain the respondent and the children, she was
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MFA No. 202451 of 2026
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compelled to file a Criminal Miscellaneous Petition seeking
maintenance, and the competent Court has awarded
maintenance of Rs.11,000/-. Despite the maintenance
awarded, the appellant has not paid maintenance
regularly; accordingly, the respondent sought dismissal of
the petition.
The appellant has examined himself as PW.1 and got
marked Exs.P1 to P14 in support of his contentions. The
respondent has examined herself as RW.1 and no
documents were marked. On appreciating the averments
in the petition and the reply filed by the respondent, the
Family Court framed the following issue:
“ whether the appellant has proved
to the satisfaction of the Family Court
that he is entitled to the reliefs sought
in the petition ”.
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MFA No. 202451 of 2026
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The Family Court concluded that the appellant is not
entitled to any relief and answered the point in the
negative . It is this order which is impugned in the
present appeal.
3. Learned counsel appearing for the appellant submits
that the Family Court erred in not appreciating the
averments made in the petition and the oral and
documentary evidence placed on record in a proper
perspective. It is submitted that the respondent has
deserted the appellant and is living separately. It is
contended that the appellant, being the father of twins
born out of the marriage between the appellant and
respondent, is entitled to have the custody of the children.
It is submitted that the respondent is avoiding custody of
the children and is also preventing the appellant from
visiting them. With this submission, learned counsel seeks
to have the appeal allowed by interfering with the order of
rejection passed by the Family Court.
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4. Per contra , learned counsel appearing for the
respondent/wife submits that the appellant has contracted
a third marriage and he is living with his third wife.
Learned counsel submits that the respondent apprehends
that the step-mother would not take care of the children if
custody is handed over to the appellant. It is further
submitted that, though the competent Court directed the
appellant to pay Rs.11,000/- towards maintenance, the
same has not been paid; accordingly, learned counsel
submits that the appellant would not take care of the
children if custody is handed over to him. The learned
counsel would therefore submit that the appeal deserves
to be dismissed.
5.
Having heard the learned counsel for the appellant
and learned counsel for the respondent and perusal of the
materials available on record, the point that arises for our
consideration is;
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“Whether the judgment and order
passed by the Family Court warrants
interference in the present appeal?”
The said point is answered in the partly affirmative
for the following:
R E A S O N S
6. The appellant and respondent married on 09.01.2025
in accordance with Muslim customs and traditions at
Mohammadiya Masjid, Shakti Nagar, Raichur. The
appellant and the respondent lived together for nearly 7
years and have two children (twins) from their marriage.
It is not in dispute that the appellant and respondent were
previously married to others, and their relationship is their
second marriage.
7. The appellant works as an Assistant Mechanic at
Raichur Thermal Power Station. It is not in dispute that
the respondent filed Criminal Miscellaneous No.167/2020
seeking maintenance, and the competent Court awarded
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maintenance of Rs.11,000/- collectively in favour of the
children and the respondent. The appellant filed a petition
under the Guardians and Wards Act seeking custody of the
minor children (twins) in G & W.C.No.17 of 2024. The
respondent had filed objections and opposed the petition.
The Family Court, having regard to the averments in the
petition, the respondent's objections, and its appreciation
of the oral and documentary evidence, rejected the
petition by order dated 08.07.2026.
8. The respondent has specifically contended that after
she left the matrimonial home, the appellant remarried
and is living with a lady named Arshiya. In the
proceedings before the Family Court, there is no reference
to the appellant's marriage to Arshiya. Nothing was elicited
during the examination and cross-examination of the
appellant and the respondent, respectively. The appellant
asserts that, since the respondent has studied only up to
th
10 standard and an uneducated lady cannot give proper
education to the children, this cannot be a ground for
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determining custody. The appellant's contention that,
since he has permanent employment and can bear all
expenses for the welfare of the children, he is entitled to
custody of the minor children, is not a ground.
9. The undisputed fact remains that the respondent
filed a petition seeking maintenance in Criminal
Miscellaneous No.167 of 2020, and the court awarded
maintenance of Rs.11,000/- directing the appellant to pay
the same to the respondent. The appellant is otherwise
under an obligation to maintain the children whether the
custody remains with the appellant or the respondent
herein. Though the appellant has denied the allegation
that he has contracted a third marriage, nothing is
forthcoming about the manner in which the appellant
would take care of the minor children if the custody is
handed over to the appellant.
10. It is imperative to observe that the petition was filed
under the Guardian and Wards Act in 2024, and the
appellant has admitted that, since 2020, he has not
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inquired about the minor children, including the class and
the school in which they are studying. The appellant states
that the respondent has not provided any information on
this. However, he admits that he also did not make efforts
to get the information. The appellant also admits that he
has not placed on record any material documents to show
that he was taking care of the children's maintenance and
education. This admission establishes that the appellant
was not seriously interested in having custody of the
twins.
11. The respondent's oral testimony in paragraph No. 12
of the examination-in-chief by way of affidavit indicated
that the appellant has contracted a third marriage with a
lady named Arshiya. However, in the cross-examination,
the appellant avoided any question relating to the same.
The materials on record show that the appellant has not
even tried to establish contact with the children for over 5
years, and no justification is forthcoming. The appellant
categorically admits that he does not even know the
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school and class where his children are studying. The
Family Court is therefore justified in observing that the
appellant, as a loving father, has completely failed to
convince the Court why he did not establish contact with
the children for more than 5 years.
12. The other allegations against the respondent do not
support the appellant's case, inasmuch as the appellant,
having approached the Family Court seeking custody of
the children, must establish his case to obtain custody.
Under such circumstances, the Family Court rightly held
that it may not be appropriate to permanently hand over
custody of the twins to the appellant herein.
13.
Admittedly, the appellant is the father, and he is
entitled to the children’s love and affection. Similarly, the
children are also entitled to the love, affection, and care of
the appellant, being the father. The twins are also entitled
to the father's love and affection, apart from the mother's.
Albeit the appeal is liable to be rejected insofar as
permanent custody of the twins is concerned, nonetheless,
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in our considered view, the appellant shall be granted
visitation rights so that the appellant and the twins (minor
children) may share love and affection with each other. In
that view, we deem it appropriate to allow the appeal in
part by granting visitation rights in favour of the appellant.
14. Hence, we proceed to pass the following:
ORDER
a. The appeal is allowed in part .
b. The appellant, being the father, is entitled to
visitation rights, and the respondent shall
allow the appellant to visit the children on
Saturday and Sunday from 10:00 a.m. to
05:00 p.m.
c. The respondent shall allow the appellant to
take the children outside during that period
and hand over the custody of the children in
favour of the respondent in the evening.
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d. The judgment and order passed in G &
W.C.No.17/2024 dated 08.07.2026 on the
file of the Principal Judge, Family Court at
Raichur, is modified to the extent
aforementioned.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(SUBRAMANYA RANGARAO)
JUDGE
MSR
List No.: 2 Sl No.: 11
CT: AK