S. Parvatha Rao, J.
1. These two appeals are preferred under Section 47 of the Guardians and Wards Act, 1890 ('the Act' for short) questioning the order dated 14-6-1995 of the Family Court at Hyderabad in O.P.No. 35 of 1995, which was so numbered on 3-6-1995 after O.P.No. 1021 of 1994 on the file of the Additional Chief Judge, City Civil Court, Hyderabad, was transferred to that Court after it was established on 4-3-1995. C.M.A.Nos. 793 and 886 of 1995 are preferred by the respondent and the petitioner in the Q.P. respectively against that order. They are heard together and they are being disposed of by this common judgment.
2. This is a case where the mother and father contest for the guardianship of the person of their children and illustrates the psychological trauma experienced by the children in the process at their very impressionable age. Humaira Khan is the mother and petitioner in the O.P. Mohammed Shaheryar Khan is the father and respondent in the O.P. They will be referred to hereafter as the petitioner and the respondent respectively. They belong to the Sunni sect of Muslims. They were married on 3-12-1987. They have three minor children. The eldest is a son born on 20-2-1989 and named Sardar Yar Khan @ Umair; the second is also a son, born on 15-9-1991 and named Mohammed Mohiuddin Masood Yar Khan @ Uzair; and the third and the last is the daughter born on 27-1-1993 and named Barkatunnissa Begum @ Inaya.
3. Serious differences seem to have cropped up between the spouses even before Umair was born. Less than one month before Umair was born, on 24-1-1989 the petitioner was taken away to her parental home by her father A statement of the petitioner's father was reduced to writing on stamp paper on that day i.e. 24-1-1989 (marked as Ex. A-16). This bears the signatures of the petitioner's father, petitioner, respondent and his mother, sister and brother-in- law. Petitioner's father stated therein, inter alia, as follows:
'The purpose was to take my pregnant daughter (ninth month pregnancy) to our house, as it is the first pregnancy of my daughter. But Mr. Shaheryar objected and created tension by using filthy words. Now I have to state that under these tense conditions, my daughter became pale and upset and wanted to come home along with us. In these circumstances, I am taking my daughter to my house, before the following witnesses.'
She gave complaint dated 6-5-1989 (certified copy of it issued on24-10-1994 was marked as Ex. A-22) against the respondent to the Inspector of Police, Sanathnagar alleging that he was making 'dowry demands'. What is relevant for the present case is that therein she stated, apart from that she was being grossly ill treated;
'His tortures for more dowry became vigorous day by day and his anger became violent with threat to kill me, and remarry another girl.'
On that complaint lodged on 13-5-1989 in P.S. Sanathnagar, Crime No. 146 of 1989 was registered under Section 498A of the Indian Penal Code. After investigation, the Police filed the charge-sheet before the Court of the Additional Chief Metropolitan Magistrate-cum-Manila Court at Hyderabad and cognizance of the offence was taken and the matter was taken on file as C.C.No. 149 of 1989. Respondent took a second wife on 20-6-1989.
4. On 30-3-1990 the respondent preferred M.P.No. 327 of 1990 praying for reinvestigation into Crime No. 146 of 1989 of P.S, Sanathnagar, and case C.C.No. 149 of 1989 pending before the Manila Court be closed. He stated therein that the said case against him was a false one with an ulterior motive to compel him to give share in his ancestral property, and that his own sisters were creating problems against him and created a rift between him and the petitioner for their personal gains. He alleged that the petitioner deserted him and also kidnapped his son and kept him in illegal custody at her Nampally house and was not allowing him to meet his own son. He also referred to the statement dated 24-1-1989 of the petitioner's father (Ex. A-16). He also stated that the petitioner went for delivery to her parent's house on her own accord. He also alleged that his brother-in-law Shah Alam Qadri (his younger sister's husband) engaged goondas and unsocial elements led by one Afsar Pahalvan and others of Mdhdipatnam, and these persons by use of force and muscle strength forcibly took away his jeep bearing registration No. ADB 3887 and also Ambassadar car bearing registration No. ADX 7205. In that connection, he lodged a private complaint before the XII Metropolitan Magistrate at Hyderabad under Section 200 Cr.P.C. for offences under Sections 342, 365, 383, 323, 504 and 120B read with Section 34 of the Indian Penal Code (that complaint was dated 20-9-1989 and was registered on 30-12-1989 as Crime No. 175 of 1989 of P.S. Habeebnagar). He also alleged that the gang engaged by the petitioner and her father Jed by the said Afsar Pahalavan kidnapped and tortured him and forced him to write on blank paper to loot and grab his property. M.P.No. 327 of 1990 was rejected by the learned Chief Metropolitan Magistrate-cum-Mahila Court on 30-3-1990 itself. He also filed a complaint dated 30-1-1990 before the Additional Chief Metropolitan Magistrate (Manila Court) (that was marked as Ex. A-2]) in respect of that Crime No. 175 of 1989 alleging that the police were not taking any action. In Ex. A-21, he alleged that the respondent was being forced by M.M. Khan @ Afsar Pahelvan and his cronies to give talak to the petitioner and to pay Rs. 51,000/- to her. He further stated as follows:
'It is pertinent to inform the authorities of police that petitioner Sheryar Khan wants to stay with his wife Smt. Humera Begum as already a child is born to them and he don't want to give talak to his wife Smt. Humera Begum but his wife Humera Begum wants separation and divorce from petitioner and as such she is at liberty to take 'KULA' divorce as per Islamic Law and she is not entitled to get Meher amount of Rs. 51,000/- as per Muslim Law but in order to get Meher amount of Rs. 51,000/- she is influencing polite officials of Balanagar, Asifnagar etc. All strange and novel tactics and methods are being adopted by Humera and her parents and they by taking support of M.M. Khan @ Afsar Pahelvan using influence. Afsar Pahelvan using muscle strength to harass the petitioner and out of way supporting Humera Begum as it appears that he wants to marry her.'
But the original complaint dated 20-9-1989 made under Section 200 Cr.P.C. filed before the XII Metropolitan Magistrate at Hyderabad (F.I.R. based on that marked as Ex.B-5 at the instance of the respondent himself in C.M.P.No. 10176 of 1995) did not state all that. The accused in that were only his father-in-law, mother-in-law and brothers-in-law i.e. the petitioner's father, mother and brothers. He alleged in that complaint that on 6-8-1989 when he was at the house of his second wife, the accused with some rowdy elements forcibly had taken him and his cars and got signed some papers by him by force, and that after getting the papers signed, he was allowed to leave the place. He also stated that he complained to the police on 8-8-1989 but the local police being under the influence of accused persons had not taken any action.
5. There was obviously a patch-up between the petitioner and the respondent later in 1990 because Uzair was conceived and born on 15-9-1991 and a compromise deed dated 23-9-1990 (marked as Ex. B-1) was executed by both. That was signed by the petitioner and the respondent. It was stated therein:
'......due to atrocities of the first party (petitioner), very much pain and deserted, there was no other go for him (respondent) to contract second marriage. Therefore, in the meantime, the second party (respondent) contracted second marriage and he is leading a happy matrimonial life with the second wife.....'
However, no steps were taken in the Criminal Case C.C.No. 149 of 1989 immediately. Nearly two years later leave to compromisepetition,M.P.No.869 of 1992, and compromise petition, M.P.No. 870 of 1992, both dated 22-7-1992, were filed in C.C.No. 149 of 1989 by the petitioner; the latter was signed by the petitioner as the complainant and the respondent as accused. After that, Inaya born on 27-1-1993. It is the case of the petitioner that she continued to live with her parents at Nampally and that her three minor children were all the time with her. The respondent used to visit her at her parents' house. The respondent paid her maintenance at Rs. 1,200/- per month for a period of 12 months from April, 1992 to March, 1993 for herself and the three children. Thereafter, he stopped the payment. It is the case of the petitioner that on 7-1-1994 the respondent wanted to take the eldest son Umair to a wedding and so she had him left at the respondent's house, and that he was not sent back to her after that. $he was also prevented from seeing him at the respondent's house when she went there and she was not allowed to take him back. After her entreaties and attempts to get him back failed, she presented this O.P. praying that she should be appointed as guardian of the person of her three minor children and that the respondent should be directed to hand over the custody of Sardar Yar Khan @ Umair to her, under Sections 7(a), 8, 9, 10 and 25 of the Acton 7-11-1994 before the Additional Chief Judge, City Civil Court at Hyderabad and the same was numbered as O.P.No. 1021 of 1994.
6. Pending O.P.No. 1021 of 1994, the petitioner sought custody of her minor son Sardar Yar Khan Umair in I.A.No. 1152 of 1994. In another application, I.A.No. 1153 of 1994, she also sought a direction to the respondent to admit him in a reasonably good school not far away from the petitioner's residence until disposal of the application for interim custody in I.A.No. 1152 of 1994; and this was ordered on 30-12-1994 directing the respondent to admit the minor child in any good school of his choice, observing that the petitioner should not disturb the child attending the school. This order was complied with by the respondent by joining the minor in Carleton School at Jubilee Hills in January, 1.995.
7. Extreme Stands were taken by the petitioner and the respondent in their affidavits in support of and in opposition to the application1 l.A.No. 1152 of 1994 for delivery of custody of the minor Umair to the petitioner. It is not necessary to go into the details but one aspect needs traversing at this stage because it has its reflections on the subsequent developments. In her affidavit dated 23-12-1994 in support of her application, the petitioner alleged that after Umair was left in the respondent's house for attending a wedding in his family, he was unlawfully detained and not allowed to return to her and was illtreated. She also alleged as follows:
'The child was forcibly taught to say bad things about me and my family, and I have learnt that he has even been burnt on his private parts with cigarette when he urinated in bed. All the while, I was being threatened that if 1 tried to go to the police or even see the child my husband would have acid thrown on my face, file false cases against us till we were compelled to stay in my father's house would throw kerosene on my family and kill them etc. He is totally irrational and brutal, and takes sadistic pleasure in hitting and brutalising me and my children.'
The respondent did not lag behind. In his counter affidavit dated 30-12-1994, he denied all that. He alleged that the petitioner had no love or affection towards children and never cared for them. He also alleged that on one of his visits to the petitioner, he saw 'the child developing fits, and she (petitioner) was just then fully decorated was stepping out and when I insisted her to be at the side, she expressed her inability in view of the prior appointments and abused me.' He stated that she (petitioner) opted for a residence with her father in view of the fact that at his house she has no inclination to follow Islamic tradition and lead a free bird's life, and that she herself deserted his (respondent's) house on 24- 1-1989 asking him to go for a second marriage. He admitted that he was living in his house with his second wife. He even went to the extent of alleging as follows;
'I submit that her intention is one and her expression is another and in fact she will ruin the life of the innocent for her worldy pleasures and there is every apprehension that she will ultimately transport him (Umair) to Gulf for reasons best known for camel race, for two other brothers are now in the Gulf, '
He further stated as follows:
'Similarly, she has stooped to an allegation that I have caused injury to my son's private part which she claims to have learnt (but she has not revealed the source) and the true fact is the other way round, for her character, her family's affairs and the inhuman treatment the boy had to undergo when with her, reveals that in no event and under no circumstances the boy be subjected again to her atrocities and instead of my revealing it, it would be in the best interest of the minor the Honourable Court be pleased to inquire personally, of the truth or otherwise of the facts.'
And in the end, he stated this:
'I submit that her third brother Mr. Murtuza Baig is not normal nor has source of living and once when I am passing by I found the boy hanging holding two construction protruding rods. The boy would have fallen and died. I rushed and saved. It was purely accidental that I visited the place otherwise the boy would have died. It was revealed that the said brother (the abnormal) had hanged him thus and when questioned everyone took lightly. I submit that he is not only abnormal but has abnormal in inhuman behaviour with the child. He is a victim of lust, having carnal unnatural lust fulfilled with my son, and has been using the boy for the said purpose, during his stay with the petitioner for it is not only prohibited in Islam, but against the nature, illegal and essentially punishable. I submit that no father can tolerate his minor innocent so to be subjected to such atrocities and seek the protection by this Honourable Court. I submit that the main intention for filing this petition is his illegal satisfaction, and therefore she has come to extend the said illegal facility to him and want my son and has come up with petition (i) seeking the custody during the vacation of the Court (ii) admission in a school near her and (iii) seeking the custody permanently.'
The petitioner in her rejoinder reply affidavit dated 17-1-1995 denied that she asked the respondent to seek a second marriage, and also the other allegations in the counter affidavit. As regards the allegations concerning her brother Murtuza, she stated as follows:
'The contents highlight the sick and depraved mind of the respondent, and his attitude of boastful, smug arrogance. The concoctions serve to show what the respondent's thoughts are like. Earlier it was stated that the main purpose of the present petition being filed was extortion of money, and now it is asserted that my brother's alleged illegal satisfaction is the primary reason: the allegations are baseless and motivated, and arise from the sickness of the respondent's mind. My brother is a perfectly normal person, and has as much love and concern for my children as the other members of our household.'
8. LA.No. 1152 of 1994 was disposed of by the learned Additional Chief Judge by his order dated 14-2-1995 directing the respondent to give custody of Master Sardar Yar Khan to the petitioner every alternative week commencing from 19-2-1995. He observed mat though they traded charges profusely, those charges were yet to be proved and that it would not be proper for him to readily accept either of those versions in order to brand one or the other of the parents as a person unfit for holding custody and they were very liberal in hurling very grave allegations against each other. As regards the allegation involving the petitioner's youngest brother Murtuza, the learned Additional Chief Judge observed as follows:
'In this regard, the learned counsel for the respondent strongly contended that the delivery of the child to the petitioner is not in the best interest of the child. To substantiate that, he mainly relied upon again an inconclusive wild allegation levelled against the brother of the petitioner who according to them exposed the child to a great risk as also to a kind of child abuse to satisfy his so called lust. But this allegation ceased to have any force with the exit of the said brother of the petitioner from the house where the petitioner is presently living inasmuch as he had left for Gulf countries by the time this matter came up for hearing. This was asserted across the bar and there was no denial from the opposite side. The learned counsel however submitted that the trauma of that experience would nevertheless linger in the mind of the child and if the child is forced into the very same atmosphere all over again, it would have the lasting adverse impact upon the mental growth of the child. I must say that this argument of alarm is based upon unscrutinised fact. This Court cannot readily accept that a child being restored to a mother would entail in such a grave risk to the child. On the other hand, the mother's love will have a soothing effect on the mind of the child who obviously became on object of snow balling in this matter.'
He also referred to the interview with the child (Umair) to gather his preference, and observed as follows:
'It is no doubt true that the child categorically stated to the Court in the privacy of its chambers that his father had been looking after him well and that he liked to continue in the company of his father...........In this connection, the Court cannot be oblivious of the fact that the child was handed over to the respondent as far back as in January, 1994 as per the affidavit of one Sunil Kumar marked as Ex.A-25 as also the fact that the child is of tender age susceptable for tutoring.'
9. The respondent questioned the said order in I.A.No. 1152 of 1994 before this Court in Civil Revision Petition No. 586 of 1995. By interim order dated 17-2-1995 in C.M.P.No. 2603 of 1995 this Court stayed the operation of that order. The Civil Revision Petition itself was disposed of by S.V. Maruthi, J. on 5-4-1995 setting aside the order of the learned Additional Chief Judge dated 14-2-1995 and directing as follows:
'However, taking into consideration the facts and circumstances of the case, I direct the Additional Chief Judge, City Civil Court, Hyderabad, to call the child to his chambers on 5-6-1995 and the child should be kept in the company of a responsible Lady Magistrate or any other responsible lady Officer from 10.00 A.M to 5.00 P.M. from5-6-1995 to 7-6-1995 and the lady Officer should interact with the child casually for those three days continuously and then the Judge shall talk to the child in his chambers and ascertain his wishes on 7-6-1995 in the after-noon without being influenced by the mother or father of the child and thereafter he shall decide the O.P. on 12-6-1995 finally,'
S.V. Marulhi, J. also noted in her order that on her talking to the child, the child expressed his wish to stay with the father and that he also made certain complaints against her maternal gtand-falher, maternal grand-mother and maternal uncle. Subsequently, on a mention made by the learned counsel for the respondent, by order dated 7-4-1995 a statement of the child taken in the chambers was made a part of the record and added at the end of the order in CR.P.No. 586 of 1995 and it is as follows:
'I have called the boy into my chambers and in the presence of Smt. M. Bhaskara Lakshrni and Sri Fi. Srinivasa Rao, learned counsel, I talked to the boy. The boy said that he wants to stay with his father only, that he is not willing to go to his mother, that his mother used to leave the house in the mornings without informing him and return only in the nights; that he is afraid of his mother and grand-parents; that when he asked for food, his grand-father asked him to go to his fattier and have the food; that his maternal uncle applied soap and handled his private parts, that a doctor gave an injection; that his grand-father used to beat him on his back; and that his grand-mother also beats him on his back,'
10. It is relevant to note that, after counter affidavit dated 30-12-1994 was filed by the respondent and rejoinder or reply affidavit was filed by the petitioner on 17-1-1995, arguments in I.A.No. 1152 of 1994 were heard on 31-1-1995 and it was posted for orders on 14-2-1995 and the order therein was delivered on that date. Counter-affidavit dated 17-1-1995 was filed by the respondent in O.P.No. 1021 of 1994 on 6-2-1995 i.e. after arguments in LA. No. 1152 of 1994 were heard on 31-1-1995, and after orders therein were reserved. He denied that he ill-treated the petitioner and the minor Umair. He also denied that he threatend to shoot his mother. He stated that 'he did marry again at the instance of the petitioner only and has the children mentioned by his second wife.' He stated that all the three minors born to the petitioner were his children, and he never thought or declared otherwise. As regards the circumstances under which Umair was sent to him by the petitioner, he stated as follows:
'..........the Respondent submits that it is not true to say that the petitioner left the eldest minor with respondent at his request. The fact is that when the respondent visited the petitioner he found him wandering in the street without being looked after and as was usual, the petitioner came home at about 3.00 P.M. stating that she had gone out to attend a marriage. The respondent who had found these children thus neglected on several occasions previously, told her that she should look after the children. Thereafter, the eldest minor was sent to the respondent through a stranger. The petitioner was actually glad to see the eldest minor sent and left with the respondent. She claimed that she is busy in her elder brother's marriage. She never enquired about him all along. She filed the present petition on 7-11-1994. Early during this period, the respondent learnt from the minor that he was being severely ill-treated by her, her mother's relation, that his uncle younger 'Mama' sexually abused the child, that his mother was tolerant of all this and also neglected the child to the point of allowing and putting up with the sexual abuses, ill-treatment and negligence meted out to the child. He was also further warned on pain of being beaten against complaining to any one. Almost immediately after he was brought home, it was seen that, the minor bore several marks on his buttocks and his neck. He would not explain how he got them. He was fearful of being beaten if any of this came out. It was over a period of time that he told the respondent what his (Mama) Murtuza Baig did to him and how he was neglected and ill-treated by his mother and their relations. It is not true to allege that there was any removal of the minor on 7-1-1994 or that it was a deliberate move or that the retention of the child was unlawful or that there was any understanding that the child would be returned to the custody of the petitioner or that the minor was brutally terrorised or beaten across the face or temple region or with such severity that it was feared he would lose his hearing or that the minor was burnt brutally with lighted cigarettes or that the minor's life was made unhappy or miserable. The respondent treated the minor with equal care and affection............'
He also denied that the child was being tutored to speak or think ill of the petitioner or that he was poisoning the child's mind, and that on the other hand the child was afraid to reveal the extent of negligence and sexual abuse he was subjected to. He stated that the petitioner visited the respondent of a few occasions 'but did not bother even to see the child. It is also not true that any attempt made by her in that direction was met with any abuse or insult or threat or a rebuff.' He stated that the petitioner failed to persuade him to transfer a substantial part of the property to her, and therefore she stayed at her parent's house. However, he admitted that 'he leads a modest life, not a luxurious one, that the 'big' house is an ancestral property inherited by the mother of the respondent and costs a lot to maintain and further that his income is also modest and not 'big' as is alleged and he has no Valuable' movable property or even immovable property.......He has a licence for his fire arm.' He stated that he was anxious that the other two minors should not be exposed to the type of sexual abuse, neglect and illtreatment which the eldest minor was subjected to. He further alleged as follows:
'..........Her own behaviour is wanting in several respects. She is constantly out of her house, atleast when the respondent visited her and she would come back only at 3.00 P.M. or 4.00 P.M. on the ground that she went to a function or a party or a lunch. Invariably, the respondent found her dressed in a flashy manner. He wants his daughter to behave more modestly and if the petitioner's example is before them, they may fail to be brought up as the respondent desires.'
He also stated that the petitioner did not have any income of her own and that she was living with her parents and brothers and that one of her brothers Murtuza Baig had indulged in sexual abuse of the eldest minor. He also stated that his mother was there to look after Umair, and to bring him up properly in the traditions of the family, In view of these, he submitted that the petitioner was not fit to have the custody of the minors and that under Muslim law he was entitled to be the guardian of all the three children, and that the respondent should not be directed to handover, the custody of Umair to the petitioner. He also stated the he would seek the custody of other two children as soon as their infancy was over.
11. The petitioner filed her rejoinder dated 13-2-1995 on 14-2-1995. Therein, she stated that the alleged 'interest' of the respondent's mother was not true and was an after-thought as a desperate measure to provide false ground for his guardianship, and that the respondent's mother never bothered about the children, and that none of her children were ever in 'the custody of the respondent's mother or care at any time. She denied that she neglected the minors, and that the story set up about Umair being found walking along the street and being sent to the respondent with a 'stranger' was all false. She denied that she attempted to secure for herself the properties of the respondent or that she dressed objectionally. She denied that there was any sexual abuse of the first son. She further stated as follows:
'.......,......Respondent never asked for much less claimed-custody of any of the three minors, at any stage, including the eldest: he just wrongfully retained the boy (eldest) by deceit and fraud, as already stated in the O.P., making assurances that he would return the child, to live with the petitioner and his two younger siblings, as was always the case before the child was so removed, on 7th January, 1994.'
She contended that the respondent was totally and absolutely unfit to be the guardian of the persons of the minors, for which the petitioner was entitled as directed in the O.P. She also made reference to M.C.No. 10 of 1994 and M.P. No. 2889 of 1994 on the file of the learned III Metropolitan Magistrate at Hyderabad initiated by her against the respondent for maintenance.
12. We have to mention here in chronological sequence that the respondent gave police complaint dated 24-2-1995 (marked as Ex. A-30) against Murtuza Baig (youngest brother of the petitioner), petitioner, her mother, her father, one Dr. Majid (who has alleged to have treated the minor Umair for sodomy case and suppressed the truth by not sending the case to police when it was a medico- legal one), and Sunil Kumar (friend of Murtuza Baig), who as per child's version alleged to have involved in homo-sex, under Sections 377, 337, 387, 506, 317, 304, 120B, 368, 385, 511 of the Indian Penal Code and offence under Juvenile Justice Act, 1986. Therein, he stated that because of his second marriage, the petitioner, her parents and her brothers developed vengeance against him and started harassing his child by beating with sticks and rods and for taking revenge against him, and that they inflicted injuries on his minor children behaving with utmost cruelty causing suffering to all. He further stated as follows:
'8. That on 7-1-1994 a stranger by name Sunil Kumar friend of Murtuza Baig i.e. brother of 1st wife Humera brought my minor child Sardar Yar Khan in a serious condition and left the child at my Sanathnagar residence without informing anything about the condition of the child immediately left the house.
9. That I noticed that the boy was weeping and shivering with fever appearing very weak with blackish blue rings around the eyes and totally anaemic. That this condition was due to extra dural haemorrhage of the anal part and even death could have occurred if timely treatment was not rendered.
10. That I asked the boy why he was weeping and how he developed the bleeding. The child at first look towards me with great fear but on consoling the child he slowly started revealing true facts. He informed that his Maternal Uncle i.e. Murtuza Baig has inserted his penis into rectum. The child's version is 'Mere gand me uska bulla dala our jab se mujhe dard ho raha hai'. This Murtuz used to do by carrying him into the bathroom upstairs and do the unnatural intercourse by applying soap. That further the child disclosed that in this connection he was treated by a Doctor of Nampally who is cousin and family doctor of my 1st wife by name Dr. Majid. For above acts Murtuza Baig is liable to be punished Under Section 377 of I.F.C. as he committed carnal intercourse against the order of nature with minor boy and as such he be punished with imprisonment for life. Other family members i.e. Humera, my 1st wife and her mother and father be also punished as all have conspired to kill my child and not disclosed true facts to me or informed the police. In this connection, Dr. Majid be also arrested as he treated a Medico-legal case instead of sending and referring the case to police. He protected criminals like Murtuza Baig and Humera and her parents who are bent upon killing my child to take revenge against me as I performed second marriage and as such above persons be also punished for above offences for abeting and conspiring with Majid and Humera.
11. That it is revealed by boy that he was treated by Dr. Majid and his natural grand-mother and grand-father were applying ointment on the injured part where Murtuza inserted his penis near anus,
12. That it has come to know that the boy informed natural mother Humera about the illegal and unlawful acts of Murtuza Baig but she said 'Chup Raho' 'Chup Raho' and did not take action against Murtuza. The boy was warned not to tell the truth that Murtuza Baig has committed un- natural offence and said ' Aaban Chup rakhna nahi to zaban khij delange' and the boy also disclosed that his mother Humera and parents used to encourage Murtuza Baig and used to tell Murtuza 'Kar-rekar-acha kar' 'Mardal Harma ke Hu' and used to say 'Acchi dusmani lele' and used to tell that 'Teri ma ko chod ke doosri shadi kar ta tera bap uska hisab tere ko bhugat na hoga'and used to tell the boy 'Raaz ki baat kisi ko nahi batna' (not to disclose secret matters).
13. That I enquired the matter with my 1st wife Humera why her brother Murtuza Baig has done like that and why she, her parents and Doctor Majid suppressed the facts and not reported to the police. She said she was helpless to take action against her own brother as he is unemployed and had also stolen her gold bangles and Camera and he being chain smoker and drunkard could no one control his vices and he grown up and having number of wives and activities and hence I could not tell him as father and mother encourage him for his illegal acts.
14. That when the pain and injury caused on the minor child was out of control the natural mother in sheer fright she sent the minor Sardar Yar Khan of 5 years through a stranger Sunil Kumar to my house at Sanathnagar. Later I came to know that Sunil Kumar is close friend of Murtuza Baig and he is also involved in illegal acts.
15. That by observing the condition of boy I took the boy to the Doctor and started treatment. Later boy started revealing entire illegal, unlawful acts of Murtuza and the boy also disclosed that his mother Smt. Humera is also an irresponsible lady who by abandoning the children used to go out even in night times and her parents encourage for her illegal unlawful acts. The boy also disclosed that without wearing Pardah she used to go out and persons used to bring Maruti Car as she used to go out leaving minor children.
16. That the above Murtuza and others have taken the law in their hands and entire evidence is suppressed by Murtuza, Humera and her mother and their father and also by Dr. Majid and Sunil, friend of Murtuza, and as such action be taken for suppressing heinous inhuman crime on child.
17. That Murtuza has illegally committed sodomy as he has achieved his carnal his lust fulfilled by thrusting and penetrating his organ into the rectum of minor boy and for that he is liable to be punished Under Section 377 and 304 I.P.C., and all others have joined in conspiracy to murder my child by committing attrocity and for that all be punished Under Section 304 r/w Sections 120-B and 34 of I.P.C.
18. That examination of Murtuza Baig and minor boy be conducted to find out the existence of any venereal disease which may lead to the disease of Aids and active and passive persons both be examined as by applying force, pressure and coercion Murtuza Baig committed sodomy by physical force and fraud as by reason of age the minor boy of five years was physically unfit to commit the offence. The marks of violence and injuries are still visible on the minor boy Sardar Yar Khan. Boy also disclosed that his mother and her parents used to beat him with pipe and stick.'
As seen from the First Information Report (marked as Ex.A-29), this complaint was received on 14-3-1995 and it was registered as Crime No. 38 of 1995 of P.S. Habeebnagar under Section377 I.P.C. The date of occurrence was noted as prior to 7-1-1994, and the age of Umair was shown as five years. This was intimated to the III Metropolitan Magistrate at Hyderabad. The police gave a final report dated 27-5-1995 (marked as Ex. A-31) stating that the case against the accused was false. That was informed to the respondent on the same day. Sri Mohd. Ismail, Inspector of Police, P.S. Habeebnagar, stated in his final report, inter alia, as follows:
'During the course of Investigation I examined the complainant and victim boy and recorded their detailed statements. In their statements they corroborated the FIR facts. I was about to send the victim boy to Osmania Medical College for his medical examination but the complainant handed over the medico-legal record vide MLC.No. 2946 dated 24-2-1995. Further he stated that on 24-2-1995 at 9.50 A.M. he has already produced the boy Sardar Yar Khan age 5 years before casualty Medical Officer, OGH for his medical examination. On 4-4-1995 I have sent a letter to the Superintendent, OGH, for Medical Examination Report. Dr. V.P. Patnaik, Prof. Forensic Medicine, Osmania Medical College who sent the medical report, in his report stated that 'Findings are consistent with frequent Anul Interference by a Foreign object'.
The report was not clear and it is not mentioned about injury. As such certain questions asked to the Professor for the clarification. On 10-5-1995 Answers to the Questionnaire received from Prof. Forensic Medicine, OMC, Hyderabad. In his clarification report he stated that injury on his rectum is not possible in a person habituated. The victim boy is not habituated as his age is 5 years. As per the opinion Injury should be present on his rectum. In another Answer, he further stated that there is no injury on his rectum. Finally Professor clarified that a person aged about 23 years can commit sodomy easily without rupturing his rectum if the boy is habituated. In this case the boy aged about 5 years is not habituated and as per the version of the Doctor his rectum should be ruptured. Thus the medical opinion does not help the investigation Agency for prosecuting the case.
I enquired with the neighbours of A-2. Nobody speaking about the offence. I have also examined Osman Baig and recorded his statement. In his statement he is not giving any idea about the offence and he did not hear any hue and cry of the victim boy at any time. I summoned Dr. Mazid A-5 and interrogated. He disclosed that he knows Humera and her son Sardar Yar khan, he treated the boy for fever, cough, etc., but he never treated for boy's rectum injury I have summoned A-2, A-3, A-4 and came to know mat A-1 is out of country. And on Interrogation A-2 Smt. Humera disclosed the entire previous history of the case about the custody of the boy. A-3 and A-4 who are the Grand-mother and Grand-father of the boy disclosed that their, son-in-law filed false complaint against them for taking the custody of his son............As per the version of the boy the complainant alleged that the above accuse are responsible for committing sodomy. The boy is aged about 5 years and his evidence cannot be relied upon and found to be BLATANTLY false, as it appears to be tutored well to the version of committing sodomy on him.
As per the version of the complainant that on 7-1-1994 when A-6 Sunil Kumar brought his son to his house at that time his son was serious. If the facts are genuine he should shift his son to any Government or Private Hospital or at least he should have reported the matter to concerned police but he failed to do so and he has taken 14 months time for reporting the matter to the police after tutoring his boy well about sodomy against his own mother. Uncle, and others. The complainant in his complaint alleged that still injuries were found on its Posteriar part of Anus, but the Prof. OMC, in his medical examination report has stated mat there is no injury.
On 21-5-95 I personally consulted with the Sri Satya Prasad, Legal Adviser and P.P. and obtained his opinion. In his written opinion he stated that this case is very weak for prosecuting the accused and he has also given some grounds.
During the course of investigation there are no direct, circumstansial or medical evidence to speak about the commission of offence. The complainant sent his complaint with a delay of 14 months, which appeared to be cooked and falsely implicating the Accused with an ulterior motive to retain his son permanently. The investigation has not made out any prima facie offence under Section 377 IPC against the Accused persons. Hence I am submitting herewith Final Report treating the case as False.'
Thereafter, the respondent preferred Criminal M.P. No. 1360 of 1995 before the learned III Metropolitan Magistrate at Hyderabad on 24-6-1995 under Section 159 r/w Section 202 of Cr.P.C. stating that after the filing of his complaint and after registration of the case he was never called by the police for recording his or the victim's statement and that he along with his victim son approached P.S. Habeebnagar many a time requesting the police to record statement but they were sent back for the reasons best known to them. He admitted that he received notice on 27-5-1995 that the complaint filed by him was false. He further stated:
'the respondent No. 1 /complainant (police) with ulterior motive created circumstances in favour of accused and refused investigation of the case, and appears to be hand in glove with the accused.....................
The petitioner (respondent herein) submits that there is a prima facie case and the petitioner has got ample evidence to prove the guilt of the respondent No. 2/accused. Further the victim has deposed before the Hon'ble High Court of A.P. in the chambers of Justice Ms. S.V. Maruti in the presence of the counsels Smt. M. Bhaskara Laxmi and Sri H. Srinivas Rao that he was sodomised by his maternal uncle (A-1) and the investigation of other accused is necessary.'
On that basis, he stated that cognizance of the offence may be taken by the learned Magistrate. Subsequently on 4-7-1995, sworn statements of the respondent and Umair were taken by the learned III Metropolitan Magistrate. We will advert to these later.
13. As already stated earlier, the O.P. was transferred to the Family Court after that Court was established on 4-3-1995. The Family Court complied with the directions of this Court in the order dated 5-4-1995 in C.R.P. No. 586 of 1995. Affidavit evidence was taken: Affidavits dated 8-6-1995 of the petitioner and the respondent. By order dated 14-6-1995 the Family Court partly allowed the O.P. holding that the petitioner was entitled to have the custody of all the three minors including the minor Sardar Yar Khan because he was less than seven years and he would be completing the age of seven years only in the month of February, 1996, and that she would be entitled to his custody till he completes the age of seven years. As the petitioner was already having the custody of the other two minors, the respondent was directed to deliver the custody of the minor Sardar Yar Khan @ Umair to the petitioner. The rest of the petition was dismissed holding that the father was entitled to be the guardian of the children under the Muslim law and that he was not disqualified from being the guardian of the minor children, and that, therefore, the petitioner did not have a right to be appointed as guardian of the three minors. The Family Court held that the respondent having a second wife did not disqualify him from continuing as natural guardian under Muslim Law, and that he was not disqualified on any legally acceptable grounds from continuing as the guardian of the three minors. The Family Court found that there was no substance in the allegation of the petitioner that the respondent ill-treated Umair. As regards the allegation that the boy was subjected to sodomy, the Family Court held as follows:
'.................The marking of the documents by the petitioner as per Exs. A-28 to A-31 indicates that that fact of sodomy is false, that too the complaint was lodged 13 months after the boy was delivered at his house. Hence it is clear that the respondent has no real intention at all to take vengeance against the brother of the petitioner in lodging complaint against him. But he made such a complaint only for the purpose of the petition which the present petitioner filed in the month of November, 1994. Only to meet the allegations made by the petitioner in the petition he made counter allegation in order to see that the boy was not delivered to her. With this endeavour may be due to legal advice he might have made certain allegations against the brother of the petitioner. Therefore, I hold that the respondent is not sadist or pervert.'
The Family Court also rejected the contention advanced on behalf of the petitioner that the respondent was unworthy to act as a guardian because he tutored the boy with all foul language and that it would not be for the welfare of the minor to continue the respondent as guardian though holding:
'...........No doubt the boy was tutored very well by the respondent since he repeated the same statement again and in the chambers of the High Court as well as in the chambers of the preceding Officer of this Court. The boy goes to an extent of asking the preceding officer to record his statement. But any how the boy was not tutored any foul language by the respondent. Hence, it cannot be said that it is the disqualification for the respondent to act as a guardian.'
The Family Court also rejected the case of the petitioner that she was subjected to cruelty observing that the documents filed by her showed that the matter was compromised in the year 1990, and that after compromise they both lived together and then she gave birth to two more children, arid therefore, the previous alleged conduct of the respondent could not be made a ground to render him unfit to be the guardian of the minors. The Family Court further rejected the case of the respondent that the petitioner should not be given the custody of Umair because she was not disqualified in any way from having the custody of Umair, who was aged 6 1/2 years then. The Family Court further observed that though the boy had stated that he did not like to go to the mother because she beat him for every cause, he was not old enough to form an intelligent preference for his custody, and it was obvious that he was under the influence of the father/respondent and was tutored by him since he was repeating the same statement again and again.
14. Pending C.M.A. 793 of 1995 preferred against the order of the Family Court dated 14-6-1995, the respondent sought stay of delivery of custody of Umair to the petitioner and all further proceedings pursuant to that order, in C.M.P.No. 8506 of 1995. When thatC.M.P.cameupbeforeuson5-7-1995,itwas represented before us by Mr. C.V. Mohan Reddy, learned counsel for the petitioner, that the petitioner was also preferring a C.M.A. against the said order. We then directed that appeal to be posted along with CM. A.No. 793 of 1995 on 7-7-1995 so that both could be disposed of together in view of the fact that the interest of the minor child was involved. Counsel on both sides agreed that they would be ready to argue both the CM. As. finally on that date. Counsel for the petitioner undertook mat the order of the Family Court would not be enforced pending the hearing of the C.M.As. After hearing both sides, we passed the following order on 1-8-1995:
'We already heard the elaborate arguments advanced on both sides in these C.M.As. Before disposing of the C.M.As., we thought it proper to have interaction with the child Sardar Yar Khan alias Umair and the two other minors. We directed Master Umair to be produced yesterday. We spent more than half an hour with the boy yesterday. We saw his reaction and response in the presence of his mother. Thereafter, we directed that the boy should be again brought the next day, i.e., to-day, and we asked the mother to bring the other two children, i.e., Mohd. Mohiuddin Yar Khan alias Uzair and Barkatunnissa Begum alias Inaya. To-day they came and we find that the three children are friendly and cordial towards each other. Having seen the interaction of the children and finding that the response of Master Umair towards his mother Smt Humaira Khan is obviously restrained and artificial and not natural-perhaps, because he was away from her and with the father for more than an year and half - we thought it better to allow the mother to keep Master Umair with her for ten days and we accordingly direct. During these ten days the father shall not meet the boy.
For to-day's interaction we sought the help of Mr. Justice Syed Saadatulla Hussaini because we do not know Urdu and find ourselves unable to freely converse with the children. We are very grateful to him for his assistance.
The boy Master Umair shall be produced in Court before us by the mother on 11-8-1995 in the afternoon at 2.15.'
Thereafter, on 11-8-1995 we observed and directed as follows:
'We now find the child Sardar Yar Khan alias Umair spontaneous, cheerful and without any tension in his responses. He expresses that he would like to stay with his mother only. He brought also some toys which obviously must have been given by his mother.
In the circumstances, we direct that he should continue to be with his mother until further orders.'
The C.M.As. were posted for 'for being mentioned' on 8-7-1996 and on that day, we directed the petitioner to produce Sardar Yar Khan alias Umair on 12-7-1996. On 12-7-1996 Sardar Yar Khan was produced by the petitioner. The respondent was also present. The child wanted to be with the mother i.e. the petitioner, and did not want to go back to the respondent. We then directed that all the three children should be brought by the petitioner on 15-7-1996, and what happened on that day was recorded by us as follows:
'Today the mother, Mrs. Humaira Khan, produced before us all the three children.
We requested Mr. Justice M.H.S. Ansari to assist us in interacting with the minor Master Sardar Yar Khan @ Umair as we did not know Urdu. As he was indisposed, he did not attend the Court today. We then requested Mr. Justice D.H. Nasir to assist us and he agreed. We also requested Mrs. M. Bhaskara Lakshmi, Advocate, who was earlier present when the minor Umair was produced before Maruthi, J. in connection with C.R.P. No. 586 of 1995, to be present and she came.
Mr. Justice Nasir asked Umair in Urdu whether he would go back to his father. He stated that he did not want to go back to his father but he wanted his father to come to his mother. Mr. Justice Nasir gently asked him how his maternal grand-parents treated him and whether they were affectionate to him. The boy said that they were nice to him. He also stated that his maternal grand-father died a few months back. He was also asked about his maternal uncles i.e. mother's brothers, and whether he had anything to say about his uncle Murtuza and the way he treated him. He said that all his uncles were good to him and his uncle Murtuza also was good to him. Mr. Justice Nasir took the boy through his statement of 4-7-1995 before the III Metropolitan Magistrate, Hyderabad, explaining to him in Urdu its contents. He denied the statements therein against his mother and also about his uncle Murtuza and his maternal grand-parents and the sodomy part of it. He said that all that was not correct but he did not deny that he was examined by the Magistrate and that his thumb impressions were taken on his statement. When the boy was being examined by us, his parents and their counsel were not present.
15. The other two children were cheerful. The portion of the said sworn statement of 4-7-1995 denied by Umair is as follows:
'When I was in my mother's house, my mother, grand-mother, grand- father and maternal uncle used to beat me. Then my father also stopped coming there. My father used to tell my mother not to allow outsiders to enter into our house. My mother was not heeding my father's advice. My mother was quarelling with my father. My mother used to go out leaving us in the house. She was returning in the night and she was taking bath. One day my mother and grand-mother abused my father. I was playing on the roof of the house on one day. My Murtuza uncle took me in his arms to a room made me lie on a cot, removed my knicker, applied soap to his penis and inserted in my anus. I suffered pain and raised cries. He threatened me. He inserted karchief in my mouth. He removed the bed sheet as it was spoiled with blood. Blood came from my anus. I reported the incident to my mother and my grand-parents. They advised me to keep quite and not to tell the same to my father. My grandfather made me to take bath and took me to Dr. Mazid. He gave an injection, tablets and tube. My grandfather advised me not to tell about my treatment to my father and threatened to kill me. My grand-mother applied tube for healing. I had pains for several days. After healing, my maternal uncle repeated same thing. My mother asked Sunil Kumar to take me and leave with my father. He took me to my father and left me there. My father got me treated. I was afraid and did not tell this fact as my mother threatened me to kill and cut tongue. After some time, I disclosed this incident to my father. My father took me to P.S. Police did not ask me anything.'
In the sworn statement dated 4-7-1995 before the III Metropolitan Magistrate at Hyderabad, the respondent stated that he stopped visiting the petitioner since the middle of 1993, and that she used to come to his house once in a month to collect the maintenance amount, and that sometimes he used to send the amount to her. He stated that till 7-1-1994 the boy Umair was with his mother, and that when he came to his house he found his son in a distressed condition, sick and weak. He took him to Dr. Deshpande's son, Dr. Khadir and other Doctors and he was treated, and that the treatment was done without knowing what happened to the boy and that he did not know about sodomy. He came to know about it only after ten to eleven months when the boy disclosed about it to him. He then contacted the petitioner by phone about the same but could not get satisfactory reply .Then in November, 1994, he received summons in the O.P., and then when he enquired, the boy said that the act of sodomy was done by Murtuza to the knowledge of his grandparents and mother and then he took him to P.S. Habeebnagar, and then the boy was sent to the Osmania General Hospital for examination. Subsequently, he filed private complaint which was registered as Crime No. 38 of 1995 of P.S. Habeebnagar. Even assuming that the respondent discovered the sordid facts about the alleged acts of sodomy perpetrated on his son ten to eleven months after he was brought to him on 7-1-1994, there is no explanation whatsoever from him as to why he did not immediately give a complaint to the police and why he waited till March, 1995.
16. With the minor Umair not repeating before us the story of sodomy by the youngest brother of the petitioner i.e. Murtuza and retracting what he stated earlier, the main prop for the case of the respondent has disappeared. The manner in which the minor was made to come out with the said story of sodomy before Maruthi,J., and the Family Court and before the learned III Metropolitan Magistrate at Hyderabad clearly indicates that he was tutored. That was the impression of the Family Court and ours as well. Before us also, just as he did before the Family Court, he was anxious that we should take his statement when we first examined him on 31-7-1995 . On that day he was even reluctant to look straight into his mother's eyes and sit with her. The next day i.e. on 1-8-1995 when the other two children came, he played with them, and on 11-8-1995 we noticed that his ten days stay with his mother had brought about a change in him and he wanted to stay with his mother and he did not want to go back to his father. This shows how unsafe it is to rely on the evidence of minors aged about six or seven years, and how careful we have to be in evaluating the factual position here.
17. Having aid that, the question that nags us is whether there can be any iota of truth in the story of sodomy by Murtuza uncle, now that we cannot rely on what the minor Umair said earlier which he now denies. We can answer this question only by analysing the material before us and finding out whether the respondent can be relied upon. That is the reason why, we rather pains-takingly extracted passages from the various affidavits and complaints of both the petitioner and the respondent and also of the orders made so that a clear view can be had.
18. One thing that becomes obvious, on going through the material before us, is that estranged feelings existed between the respondent and the members of the petitioner's family from 1989 itself. 'This is seen from Ex. A--16 statement of the petitioner's father dated 244-1989 before Umair was born, the police complaint Ex. B-5 of the respondent dated 20-9-1989 registered as Crime No. 175 of 1989, Ex. A-21 complaint dated 30-1-1990 filed by the respondent before the Manila Court, and M.P.No. 327 of 1990 filed by the respondent on 30-3-1990. All these were referred to by us earlier. It is in this context that allegations of the respondent against Murtuza uncle have to be looked at. In his counter-affidavit dated 30-12 -1994 in I.A.No. 1152 of 1994, the respondent painted Murtuza as an 'abnormal person' with 'carnal unnatural lust'. Thus his animus against Murtuza is made patent.
19. It is also obvious that respondent's relationship with petitioner has been vary strained and unhappy. The first glimpse of it we have from Ex. A-16 statement of her father dated 24-1-1989. Ex. A-22 complaint of the petitioner dated 6-5-1989 brings this out from the petitioner's side. She stated in that that he was physically ill treating her and was making dowry demands. She also stated that he was threatening to remarry another girl. The respondent in fact married Shabana after that on 20-6-1989. In response, the respondent complained that she was under the influence of his brother-in-law, Shah Alam Qadri (his younger sister's husband), and that she was after money and planned to grab his property. He stated that C.C.No. 149 of 1989 lodged against him by the petitioner before the Manila Court was a false one, and that his own sisters were creating problems against him and created a rift between him and the petitioner for their personal gains. He also alleged that the petitioner deserted him and also kidnapped his son Umair and kept him in illegal custody at her Nampally house. In Ex. A-21 complaint dated 30-1-1990, the respondent alleged that he was being forced to give talak to the petitioner by one M.M. Khan alias Afsar Pahelvan 'and his cronies and also to pay Rs. 51,000/- to her towards Meher. He stated therein that she could take 'KUL A' divorce if she wanted but he would not give her Meher. He even went to the extent of alleging that the said M.M. Khan wanted to marry her. However, after that, he was going to her ather parent's house and two more children were born. He stated in his counter- affidavit in I.A.No. 1152 of 1994 that she herself deserted him on 24-1-1989 asking him to go for a second marriage; and again in his counter affidavit in the O.F. he stated that 'he did marry again at the instance of the petitioner'. But in his contemporaneous private complaint dated 20-9-1989 he stated:
'That some time after the marriage, differences arose between the complainant (respondent) and his wife (petitioner) and later on she started living with the accused persons (her parents and brothers) at Nampally. As the wife of the complainant did not return and join his company, the complainant married a second wife which added fuel to the fire.'
In Ex. B-1 compromise deed dated 23-9-1990, which the respondent also signed, it was stated. 'due to atrocities of the first party (petitioner), very much pain and deserted, there was no other go for him (respondent) to contract second marriage.' Thus his statements of 1989 and 1991 belie the present stand of the respondent that the petitioner herself asked him to remarry. This shows that the respondent is not a reliable and straight-forward person. In his counter- affidavit dated 30-12-1994 in I.A.No. 1152 of 1994, he goes to the extent of alleging that the petitioner would ultimately transport her son Umair' to Gulf' for reasons best known for camel race, for two of her brothers were them in the Gulf, and that she was seeking his custody for the illegal satisfaction of the unnatural carnal lust of her brother Murtuza who, by then, already left for the Gulf. Therefore, his allegations against the petitioner have to be assessed with this background.
20. The same consideration naturally applies also to his allegation of sodomy by Murtuza. In his counter-affidavit dated 30-12-1994 in IA.No. 1152 of 1994, he did not elaborate and give any details of the alleged sodomy said to have been committed by Murtuza on the minor then aged hardly five years. He wanted all that to be brought out by examining Umair in the Court itself. There was also no mention in that counter about the condition of Umair when he was broughton7-l-1994.Subsequentty, in his counter-affidavit dated 6-2-1995 filed in the O.P., he stated that when he visited the petitioner he found the boy Umair wandering in the street without being looked after and after the petitioner came home at about 3 P.M., he told her that she should look after the children, and thereafter the eldest minor was sent to him through a stranger. Even in this affidavit he described the condition of boy when he was brought on 7-1-1994, as follows:
'Almost immediately after he was brought home, it was seen that the minor bore several marks on his buttocks and his neck.'
No mention was made of any anal bleeding or high fever. He did not even state whether the boy was taken to any doctor. He further stated that the petitioner filed the present1 petition on 7-11-1994 and 'early during this period, the respondent learnt from the minor that he was being severely ill-treated by her, her mother's relations, that his uncle younger 'Mama' sexually abused the child, the mother was tolerant of all this and also neglected the child to the point of allowing and putting up with the sexual abuses.' In Para 9 of his police complaint dated 24-2-3995 (Ex. A-30), he stated that when he saw the boy on 7-1-1994, he was 'weeping and shivering with fever appearing very weak with blackish blue rings around the eyes and totally anaemic' and 'that this condition was due to extra dural haemorrhage of the anal part and even death could have occurred if timely treatment was not rendered .'In Para 10, he stated as follows:
'Then I asked the boy why he was weeping and he developed the bleeding. The child at first look towards me with great fear but on consoling the child he slowly started revealing true facts. He informed that his meternal uncle i.e. Murtuza Baig has inserted his penis into rectum........'
As per this version, it must be that he carne to know about the rupture of the rectum and haemorrhage and sodomy very soon after the boy was brought to him on 7-1 -1994. He had not stated in his police complaint to which Doctor he had taken. He only slated :'that by observing the condition of boy I took the boy to the Doctor and started treatment.' He gave the names of the Doctors only in his sworn statement of 4-7-1995. A different version was thus given in his criminal complaint as to why the petitioner sent Umair to him on 7-1-1994. In Paras 13 and 14 of the criminal complaint he stated that he enquired the matter (sodomy) with his first wife Humaira why her brother Murtuza Baig had done like that and why she, her parents and Dr. Majid suppressed the facts and not reported to the police and she said that she was helpless to take action against her own brother and that her father and mother encouraged him for his illegal acts and 'that when the pain and injury caused on the minor child was out of control the natural mother in sheer fright she sent the minor Sardar Yar Khan of 5 years through a stranger Sunil Kumar' to his house at Sanathnagar.
21. Thus the respondent had been giving quite conflicting versions about the sodomy alleged by him. If really Umair was in a critical condition and was suffering from anal haemorrhage when he was brought to respondent's house on 7-1-1994 and he had taken him to a Doctor, the Doctor would have easily discovered the reason for the bleeding. The version in the sworn statement that he came to know about the alleged sodomy only after ten or eleven months is, on the face of it inconsistent. It is most improbable and unbelievable. If he had known about it in January, 1994 or there-about, then his not giving police complaint and not doing anything immediately is most unnatural and inexplicable. Therefore, viewed from any angle, we find that the allegation of sodomy by Murtuza against the minor Umair is not supported by any reliable material and is beyond credibility. The final report of Sri Mohd. Ismail, Inspector of Police, P.S. Habeebnagar dated 27-5-1995 (Ex. A-31) deals with the matter comprehensively and we do not find any basis for rejecting it. The medical report of Dr. V.P. Patnaik (Professor, Forensic Medicine, Osmania Medical College) 'that findings are consistent with frequent anal interference by a foreign object' referred to in Ex. A-31 makes us pause and wonder whether the respondent himself was not responsible for what happened to the minor Umair, because he was in his custody for more than a year by the time he was taken for medical examination to the Osmania Hospital. All this shows the respondent in a very poor light.
22. After going through the respondent's affidavits, complaint and statements, we agree with the Family Court that the story of sodomy set up by the respondent is false, but unlike the Family Court, we cannot view lightly the manner in which the respondent made use of the six years old minor boy in setting up such a false story and making him repeat again and again the gory- details of the act of so do my as if done on him. The insensate and inconsiderate manner in which the respondent treated the minor Umair in using him as a pawn in a bid to establish the foisted case of sodomy makes us ponder whether he is fit to be the guardian of his children. We find that hardly ten days after the minor Umair was handed over to his mother, he stated to us mat he would like to stay with his mother only, and did not want to go back to his father. We find it difficult to reject the complaint of the petitioner mat the only reason for the respondent for keeping her son Umair was to exert pressure on her and that Umair was forcibly taught to say 'bad things'.
23. There is no doubt that under Mohammedan Law father has the right to be the guardian of minor children, and that mother is entitled to have the custody of a son till he attains the age of seven years and a daughter till she attains the age of poberty. See the decision of the Privy Council in Imambandi v. Mutasaddi, AIR 1918 PC 11 = 47 I.C. 513 = 45 I.A. 73 = 45 Cal. 878 (PC) and Khatija Begum v. Gulam Dastagir, 1975 (2) An.W.R. 194. But that is subject to the provisions of the Guardians and Wards Act, 1890 ('the Act' for short).
24. Section 17 of the Act deals with 'Matters to be considered by the Court in appointing guardian'. Sub-section (1) provides that the Court shall 'subject to the provisions of the Section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.' Sub-Section (2), inter alia, provides that the Court shall have regard to the character and capacity of the proposed guardian; and Sub-Section (3) provides that 'If the minor is old enough to form an intelligent preference, the Court may consider that preference': Under Section 19 of the Act, nothing in Chapter II dealing with appointment and declaration of guardians shall authorise the Court to appoint and declare a, guardian of the person 'of a minor whose father is living and is not, in the opinion of the Court, unfit to be the guardian of the person of the minor.' Section 25 deals with 'Title of Guardian to custody of ward'. Sub-Section (1) of Section 25 of the Act is as follows:
'25(1). If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.'
25. The Act makes a distinction between guardianship of a minor and custody of a minor. The question of appointing a guardian under Section 17 of the Act does not arise when father is alive unless the Court finds that he is unfit to be the guardian of the person of the minor in view of the categorical provision in Section 19(b) of the Act. The distinction between the legal rights of husband and parents for guardianship on the one side and those of other near relations on the other is stated by Seshagiri Ayyar, J., speaking for a Division Bench of the Madras High Court in Audiappa Pillai v. Nallendrani Pillai, (1916) ILR Vol.39 Madras 473 as follows:
'In the first class of cases, it must be established that any act or conduct of the husband or father renders him unfit for guardianship; the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty. The same sanctity does not attach to the rights claimed by the other relations. It is for these reasons that Section 19 of the Guardians and Wards Act lays down that the Court must be satisfied that the husband or the father is unfit to be the guardian of the wife or child respectively before it can appoint another person as the guardian,'
26. The difference between custody and guardianship is neatly clarified by Panchapakesa Ayyar, J., speaking for the Bench of Madras High Court in Kumaraswamy v. Rajammal, AIR 1957 Madras 563 as follows:
'There is an appreciable difference between custody and guardianship. If Kumaraswami Mudaliar is deprived of the guardianship of these children, he ceases to have any right to move the Court regarding them, whereas if he continues to be the guardian, and only the custody is given to Rajammal, he can always move the Court for returning the custody to him whenever he proves circumstances justifying it.
So too, for getting a girl married, or for sending a boy for education abroad, and such like matters, the guardian will have powers, whereas if he is not the guardian he may have no such powers. Guardianship is certainly a more comprehensive and more valuable right than mere custody. In our opinion, when the more comprehensive right of guardianship is asked for by the mother but is not given it, as the evidence on record is not sufficient to do so, the lesser right of custody, could be given, if that is justified on the evidence.'
In that case, the Division Bench also held that wherever the welfare of the minor, being the paramount consideration, required it, the Court could certainly give the custody of the minor to the mother, and that could be done even in a petition by the mother to be appointed personal guardian of the minor, where the guardianship is denied her as the father was not permanently unfit, but where circumstances may show that the custody of the minor should be entrusted to the mother. The Division Bench also held in that case that for mother to be given the custody of the minor it was not necessary that the mother should be already in the custody of the minor, if it would be in the interest of the minor to do so. A Division Bench of the Calcutta High Court in Bimala Bala v. Bhagirathi Shahu, (1960-61) 65 Calcutta Weekly Notes 1138 dealt with the scope of Sections 17 and 19(b) of the Act and held as follows:
'..............Under Section 19(b) the father has the undisputed right to the guardianship of his child, so long as he is not and has not become unfit for the purpose. Under Section 17, it is the interest, and welfare of the minor concerned, which should be the guiding factor in the matter of appointment of his guardian.'
The Bench further held as follows:
'..........Merely on the ground, namely, that the minor's welfare and/or interest will be better served by some other persons as guardian, the husband's or the father's position as guardian of the particular minor cannot be disturbed, or, in other words, unless they are considered to be 'unfit' as distinguished from 'less fit' for such purpose, their position, as guardian as aforesaid, should be maintained and left undisturbed. To throw them out the test should be one of unfitness and not simply relative unfitness or inferiority in fitness and, in applying such test, the interest and welfare of the minor will, inter alia, have to be taken into consideration.'
In that case, it was held that the father was not fit to be a guardian and the Court allowed the mother's application for the guardianship of the person of the minor boy.
27. So far as custody is concerned, a three Judges Bench of the Supreme Court has dealt with the scope of Section 25 of the Act and the powers of the Court as regards matters relating to custody of minors. In Rosy Jacob v. Jacob, AIR 1973 SC 2090, the Supreme Court has held as follows:
'.............The Court's power under Section 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom-if ever identical. The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under Section 25 is the welfare of the minor children and in considering this question due regard lias of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case. There is no dichotomy between the fitness of the father to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, men, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children-which every normal parent has.'
In Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, : [1983]1SCR49 , the Supreme Court observed as follows:
'The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.'
The Supreme Court followed the observations made in Rosy Jacob's case (supra) while dealing with the rival claims of the father and the mother for the custody of the minor children mainly under the Act. See also Kirtikumar Maheshankar Joshi v. Pradip kumar Karunashanker Joshi, AIR 1982 SC 1447. In Chandrakala Menon v. Vipin Menon, : (1993)2SCC6 , the Supreme Court has held that the question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties, and that the custody of the child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. In that case also there was competition between the father and the mother for the custody of a female child aged about 8 years, and the Supreme Court directed that the custody of the minor should be handed over to her mother. ;
28. The petitioner seeks to be appointed as guardian of the person of the minors. But in view of Section 19(b) of the Act unless the respondent, who is the father of the minors, is in the opinion of the Court unfit to be the guardian of the person of the minors no other person could be appointed as a guardian. The question, therefore, is whether the respondent is unfit to be the guardian of the person of the three minors before us. 'Unfit' means not suitable or ill-fitted for the purpose. In Rosy Jacob's case (supra), the Supreme Court was dealing with 'fitness' for the purpose of custody of a minor and not for guardianship of the person of a minor. As regards fitness for guardianship, we get some guidance from the passage quoted from Story in his Equity Jurisprudence referred to by a Division Bench of Calcutta High Court in Walter v. Walter, AIR 1928 Calcutta 600. It is as follows:
'Although in general parents are entrusted with the custody and education of their children, yet this is done upon the natural presumption that the children will be properly taken care of, and will be brought up with a due education in literature and morals and religion and that they will be treated with kindness and affection. But whenever the presumption is removed, whenever (for example) it is found that a father is guilty of gross ill-treatment or cruelty towards his infant children or that he is in constant habit of drunkenness and blasphemy or low and gross debauchery; or that he professes atheistical or irreligious principles; or that his domestic associations are such as tend to the corruption and contamination of his children; or that he otherwise acts in a manner injurious to them orals or interests of his children; in every such case the Court of Chancery will interfere and deprive him of the custody of his children and appoint a suitable person to act as guardian and take care of them and to superintend their education.'
On the facts of the present case, though we find that the respondent made use of the minor Umair in an unbecoming and callous manner in a bid to establish his case of sodomy without any concern for the feelings of the minor, and effect that would have on the psyche of the minor, we are inclined to give him the benefit of doubt; may be he was over-jealous, though mis-guided. Therefore, we are not inclined to hold that he is unfit to be the guardian of the person of the three minors. However, we find him unfit to have the custody of the three minors. It would not be conducive to the mental and physical health of the minors to entrust them to his custody. Though his second marriage may not per se disentitle him from claiming custody as the natural guardian, yet that can be taken as one of the several factors that have to be kept in view in examining whether it would be in the best interest of the minors to keep them with their mother, the petitioner. The mother is a graduate and the three minors have grown with her without any break except in the case of the Umair from 7-1-1994 when he was sent to the respondent's house. The period of one year which Umair spent with the respondent had a traumatic effect on him. Even though he has crossed the age of seven years and the petitioner has no right for his custody, in the view we take we find that it would better sub-serve his welfare, if his custody is given to the petitioner, his mother. Before 7-1-1994 when he was with his mother he was studying in Taraporewalla's Montessori School, which is one of the best of its kind in Hyderabad. After he was sent to the respondent, he was not joined in any School till the petitioner sought by an application for a direction from the Court in that regard. Taking an overall view of the facts and circumstances of this case, we are of the view that it would be better for him to be kept under the love and care of his mother. We, therefore, hold that the custody of the three minors, namely, Barkatunntssa Begum alias Inaya, Mohammed Mohiuddin Massod Yar Khan alias Uzair and Sardar Yar Khan alias Umair, even though he crossed seven years, shall continue to be with the petitioner and the respondent shall not interfere with her custody of the three minors.
29. The learned counsel for the respondent, Mr. N. Rajeswara Rao, contended that the question of handing over custody to the petitioner did not arise in the present case, because there was no prayer for custody invoking Section 25 of the Act. We find that the original petition made by the petitioner did refer to Section 25 of the Act and also sought a direction to the respondent to hand over the custody of the minors to the petitioner. The Family Court also observed in Para 2 of its order dated 14-6-1995 that the petitioner prayed that she may be appointed as guardian for all the three minor children and to direct the respondent to handover the custody of Sardar Yar khan to the petitioner. In para 14 of the order, the Family Court rejected the contention of the respondent that the petitioner did not seek the relief of custody of Sardar Yar Khan in the petition, and that, therefore, such relief could not be granted. The Family Court observed that the petition clearly indicated that the petitioner also sought for the relief of the custody of the minor.
30. The learned counsel for the respondent also contended mat as the petitioner was not a natural guardian and the ward did not leave and was not removed from her custody, she could not invoke Section 25 of the Act. We do not find any merit in this contention because as held by the Supreme Court in Rosy Jacob's case (6 supra), the guardian contemplated by Section 25 of the Act includes every kind of guardian known to law and would cover a case where the guardian who, having the care of the person of the ward, has been deprived of the same and is in the capacity of the guardian entitled to the custody of such ward.
31. The learned counsel for the respondent further contended that the Family Court erred in relying on documents which though marked were not proved by any witness. Section 14 of the Family Courts Act, 1984 provides that 'A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).' In view of this provision, the Family Court is competent to receive the reports, statements, documents, etc. The respondent has not questioned the documents, etc. received by the Court. Most of the documents received are certified copies of complaints, reports, etc. filed in Courts. Therefore, we do not find any merit in this contention. Mr. Rajeswara Rao next contended that the Family Court erred in proceeding solely on affidavit evidence. Referring to Section 16 of the Family Courts Act, he contended that only evidence of formal character may be given by affidavit and not other evidence. But, we do not find that any objection was taken before the Family Court in this regard. It is not the case of the respondent that he wanted to cross-examine and that was refused. Therefore, he cannot raise this objection now.
32. In the result, C.M.A. Nos. 793 and 886 of 1995 are dismissed. No costs.