HEADING
OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of Family Judge (Mohonpur), Rajshahi
Present: Judge, Family Court
Family
Suit No. 91/2018
Mr....., Plaintiffs Versus Mrs.........., Defendant
In the presence of............
And having stood for consideration to this day, the Court delivered the following judgment: This is a family suit for child custody.
The Plaint in the nutshell:
A son named Sheikh Eftekhar Ahmed, Defendant No. 02 was born on 02/01/2017 in the womb of Defendant No. 01 at Plaintiff’s paternal legitimacy. In the aftermath, due to a family feud, Defendant No. 01 went away along with defendant No. 02 in the assistance of some others from the plaintiff’s custody and control on 10/06/2016. Since then, the child in question has been in the custody of his mother, defendant No. 01. Accordingly, the plaintiff claims that because the impugned minor’s age is over 7 years old, this mother while not residing in the plaintiff’s abode is not entitled to child custody. The plaintiff also claims that the child does not regularly attend school, and his mother does not properly take care of him. In such conditions, when he claimed the child custody from his mother on 19/03/18, the latter declined to the same as such; and hence is the suit.
The Written Statement in brief:
The Defendant No. 01 contested the suit by filing a written statement denying the material averments made in the plaint. He contended inter alia that Plaintiff lacks in locus standi, the impugned facts lack in veracity, and the very suit is legally untenable, unjustifiable; and dismissible for the cloudy cause of actions. Defendant also stated that the place where the plaintiff ordinarily resides is not favorable to the well-being of the child in question. She also claims that she is an educated woman and has been residing in Rajshahi town, and thus, the child is being properly cared for, treated, educated, and overseen. In addition, she objects to the plaintiff’s custody over the child because the latter is a witness of a criminal case instituted against the plaintiff; and the plaintiff is desirous of being benefited by way of taking custody of him.
Issues:
Considering the pleadings of the parties, the issues are framed with
modifications for discussion in the following way:
1. Whether the suit is maintainable in the present
form and manner.
2. Whether the plaintiff is entitled to get
custody of the minor in question.
3. Whether the plaintiff is entitled to get remedy
as prayed for.
Discussions and Decisions:
In proof of the claims, Plaintiff Mr. S M Aminul Hoq examined himself as PW 01, and produced the other three witnesses as PW2-4. On the other side, the Defendant, Mrs. Jesmin Khatun, in support of her claim examined herself as DW- 01; produced other two witnesses as DW-02-03; and also put forward some documents marked as Exhibit No. Ka-Ga.
Issue No. 1, 2, and 3:
All issues are jointly taken up for brevity,
convenience and cohesion. Upon considering the materials on record, it
unambiguously appears that both the parties in their pleadings admitted
by that ‘during the continuation
of the wedlock between the plaintiff and defendant No. 01, the minor child
(defendant No. 02) was born on 02/01/2007 in the womb
of Defendant No. 01 at the Plaintiff’s paternal legitimacy. It is also admitted
that the said minor is now in the custody of the defendant No. 01; and the minor
studies now in class eight at Masjid Mission School in Rajshahi. It is also
admitted that their wedlock exists no more; and the current custodian
mother, defendant No. 01, is yet to remarry.
2. However, it is not undisputable from when the child has been in her
mother’s custody. On perusal of the materials on record particularly relating
to this point, it clearly appears that the plaintiff’s claim on the minor’s
custody with the defendant mother incepted on 10/06/2016 is not substantiated
with more weighty evidence. Instead, the defendant mother placed a
documentarily proof (vide Exhibit Kha)
before the court, and evidenced that the minor defendant has been in her
custody since 28/06/2016 (e.g. vide
DW-01). Since the minor child is now in the defendant mother’s custody along
with the aforesaid facts, a suit like this is decided to be maintainable in the
present form and manner.
3. Now the court is to decide upon the facts whether the plaintiff
should get custody of the child in question. The PW.1 stated in
examination-in-chief that he attempted to take custody of the child on
19/03/2018 but failed. He claims in his pleading that “he is entitled to the
minor’s custody for the child is already 13 years old, that is to say, a son of
over seven-year-old; and also he has apprehension that as long as the minor is in his mother’s custody, he
would not properly be raised and brought up to be a good man.” But it
unexpectedly appears that although the plaintiff demands for the child’s
custody to him in his pleading, he in evidence neither put any other reasons
for such a demand otherwise than the attainment of age over 7 years, nor his
other supporting witnesses did the same while standing in the witness-box. Moreover,
his cross-examination sheds no light in his favor on such points.
4. The PW-02, in his examination in chief, attempted to clarify that he
is conversant about the parties of the suit, but he tested himself by saying that
the plaintiff has his own house at Rajshahi but he himself lives in the village. So,
his evidence has little value while deciding an issue that would impact the
well-being of a minor child. However,
PW-02 & 03 in his examination in chief narrated that the child would be at
ease if he is given in his father’s custody, but they put forward no sufficient
relevant justifications but a mere verbal assertion at best. In addition, He (PW-03) clarified the evidential
proposition by saying that he does not know whether at all the child is being brought
up property in his mother’s custody. That being so as such, their words of the
comparative advantage carries the plaintiff nowhere. Conversely, the point
of why the child’s custody is not to be any more in favor of the mother defendant
is not sufficiently addressed by the pieces of evidence led by the plaintiff’s
side.
5. It is also noticeable that the minor in question also deposed as
DW-2, and expressed his willingness not to go to his father, Plaintiff’s
custody. The minor justified his willingness in a way that “his mother
defendant is a masters’ passed woman, and he gets tuition from her in a
discerning way; so he wants his wellbeing being in his mother custody.” Even,
he in his cross-examination expressed his objection to his father’s custody. It
is also deducible that the minor nevertheless admitted his father’s spending in
relation to his educations and tuition. The general rule is that the choice of
a child above the age of nine is considered in determining custody rights. It
is well established that the quality of the relationship between the children
and each parent is of paramount consideration; and thus, ‘the thinking has
shifted from custody and access being the ‘right of a parent’ to being the
‘right of a child’. On that premise, it is not skeptical that the whole
fabric of the materials on record regarding the custody choice by the minor of
a fourteen-year boy conspicuously favors the defendant's mother in the present
context.
6. The court is thus of the view that the choice of the child in such a condition
attracts much consideration. It is untenable that the materials on the record
clearly reflects the choice of the child, and does not adequately gives rapport
to the existence of closer bonding and emotional ties between the plaintiff and
the child than that of the mother. In fact, the court is required to consider
the child’s desires, but is not required to follow them. Besides, it has
“presumptive” value; and the court will normally go with that choice. It is
also transpires in evidence (vide PW-01, DW-01 & DW-02) that the
plaintiff father could not have in the child’s best interest sufficiently
demonstrated sufficient evidence to prove his comparative advantage with regard
to his capacity and disposition to give the child love, affection, and guidance
and to continue the education and rearing of the child.
7. Again, it is concurrently contextual that the general principle of
Muslim law prioritizes fathers’ custody of older boys and mothers of older
girls, but it is not a strict rule and is primarily decided based on the
child’s interests (best interest consideration). Therefore, only the mother
holds the ultimate right to seek her child/children’s custody under the Right
of Hizanat as long as she is not convicted or found guilty of any misconduct; that
is to say, there is no confirmed evidence of domestic violence, abuse, or
neglect by the mother defendant. The whole evidential paradigm of the suit at the hand does not demonstrate that the defendant mother is proven to neglect or
ill-treat the child, or found guilty of any misconduct committed to
the child, that could oust her custody rights.
8. To put another point relating to the facts of the case, it is evident
that the defendant mother deposed in her examination-in-chief that she has
brought in a criminal case against the plaintiff, and the minor is a witness of
that case. She underscored that the plaintiff father wants custody of him
because of his being a witness to that case (DW-01). However, it appears that
no materials on record have substantiated her underscored propositions, except
the fact that the PW-01 admitted the institution of such a criminal case
against him in his cross-examination. In fact, the court is of view that being
a witness in such a case is not much cumbersome in terms of child custody
consideration; for the child witness is of tender age now, and the justice
system accommodates an opportunity for examining a witness in favor of the both
parties.
9. Another point is also mentionable that the father’s right of Hizanat
is preferential only in the absence of ‘an able-mother’. The evidence on the record
tells the court that the plaintiff father offers no such educational
information as to him; on the other hand, the defendant's mother is an educated
mother (DW-02). No doubt, the evidence shows that the plaintiff is a capable
person. Conversely, it is also evident (DW-03) that the mother has a house
purchased and gifted by her father (minor’s grandfather); and she lives, and
earns rent therefrom; and also bears the minor’s expenses as such. However, in such
conditions, it is to be kept in mind that the earning capacity of the parent
does not determine custody, but the capacity to provide a safe and secure
environment does. Hence, it would be verbose to comment that the principle on
which custody is decided is in the ‘best interests of the child’. It may, for
example, be a case that even a mother who is a housewife can gain custody of
the child and the father will be asked to provide child support. Deciding facts
include who can take better care of the child’s emotional, educational,
social, and medical needs is to be favored.
In consideration of pleadings, facts, surrounding circumstances, evidence of both oral and documentary on record, it appears before the Court that the suit deserves to be dismissed on the contest. However, this is not a suit relating to office or property; it is a suit that impacts the life and interest of a child in question. Hence, despite the suit is dismissed as such, the non-custodial father can get different types of access to the child based on circumstances and convenience, i.e. weekly, fortnightly, daily or monthly visitation rights. It can be a day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.
Court fee paid is sufficient.
Hence, it is ordered
that the suit be dismissed on contest against the Defendants without any order as to costs.
Computer composed and corrected by