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Custodianship of minor children if mother remarriages

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High Court Division :
(Civil Revisional Jurisdiction)
Md Miftah Uddin Choudhury J
Kamruzzaman (Md) @ Ratan (Minor) ... Petitioner
vs
Md Dulal Mia.............
............ Opposite Party
Judgment .
October 9th, 2013
Mohammadan Law
Section 352
A mother is custodian of a minor son till he attain the age of 7 years and of a minor daughter till she attain the age of puberty, but just on second marriage of the mother the father by operation of law becomes the custodian, for such custody no declaration by any Court is necessary. The father has the right to maintain his minor child, expect him nobody can claim custody of his minor children ..... (9)
Family Courts Ordinance (XVIII of 1985)
Section 5
The question of custody does not require any decision since he is no more minor, he is competent enough to maintain himself. As per our social system, a son in the old age of his father or mother is bound to take care of them, but in the instant case the zealous divorced wife and her parents apparently instigating the son not to mix with his father which amounts to depriving the father from taking care of his son or from getting love and affection from him. In such situation, the suit is not at all maintainable because the suit can not be filed by a baby of 2 and half years rather it was filed by his mother without having any locus standi. .......(9)
Md Khurshedul Alam, Advocate-For the Petitioner.
Sheikh Atiar Rahman, Senior Advocate-For the Opposite Party.
Judgment
At the instance of the plaintiff this Rule arises out of the judgment and decree dated 15-6-1998, passed by the learned Sub-ordinate Judge (now Joint District Judge), First Court, Sherpur, in Family Appeal No.2 of 1998, reversing those dated 26-11-1997, passed by the learned Assistant Judge cum Family Court, Nakla, Sherpur, in Family Suit No.45 of 1996.
2. The fact necessary for disposal of the, Rule in brief that the plaintiff/petitioner, a son of defendant/opposite party, at the age of 2 and half years instituted the suit against his fathers (the defendant) alleging that her mother was married to the defendant by a registered Kabinnama dated 23-5-1993. The marriage between his father and mother was dissolved by Khula Talak dated 20-6-1995 and at the time of such talak there was a written agreement between his mother and father that he (the plaintiff) will reside with his mother and the defendant, shall pay cost of his maintenance within first week of every month. But the defendant did never pay cost of his maintenance, nor he took responsibility of looking after him. His mother through the witnesses claimed his maintenance but refused, and hence the suit by him. He is aged about 2 and half years and allegedly he is represented by his mother.
3; The defendant father contested the suit by filing written statement stating that the mother of the plaintiff has no locus standi to file the instant suit on behalf of his minor son (plaintiff). He admits the Khula Talak, and further stated that his mother-in-law created pressure upon him to give some land to his divorced wife, accordingly he gave 10 and quarters decimals of land by executing a deed of Heba-bil-ewaz. His wife started to misbehave with him and her parents created pressure upon him for divorce. Ultimately their marriage was terminated by the Khula Talak dated 20-6-1995 with a written agreement that he will not demand his minor son (plaintiff) in future. The said agreement is under custody of the parents of his divorced wife. After such Talak his divorced wife, the mother of the plaintiff, was married with one Abdus Salam and has been residing with him. He (defendant) is the natural guardian of his minor son, and always ready to maintain him. He is a day labour and has got no capacity to make payment of 1,000 (one thousand) per month etc.
4. After hearing the parties, the learned Assistant Judge-cum-Family Court, Nakla, Sherpur, by judgment and decree dated 26-11-1997 decreed the suit directing the defendant to pay Taka 600 (six hundred) in every month to the plaintiff till he becomes disentitle to get such maintenance for other reason. On appeal preferred by the defendant the said judgment and decree was reversed and set aside by the impugned judgment and decree dated 15-6-1998, passed by the learned Sub-ordinate Judge (now Joint District Judge), First Court, Sherpur, in family Appeal No.2 of 1998, and the suit was dismissed.
5. Being aggrieved by and dissatisfied with the impugned judgment and decree the plaintiff as petitioner preferred this revision and obtained the Rule.
6. Mr. Khurshedul Alam, learned Advocate, appearing for the plaintiff/petitioner took me through the judgments of the Courts below, and submits that the Trial Court on proper consideration of materials on record rightly decreed the Taka 600 (six hundred) per month to his son (the plaintiff). As per him the defendant is bound to maintain his son, but since he denied to maintain the son (plaintiff) compelled to file the suit which was rightly decreed by the Trial Court. But the Appellate Court without proper consideration of materials on record and on misconception of law and fact allowed the appeal and dismissed the suit by the impugned judgment and decree which is liable to be set aside as being illegal.
7. To oppose his such argument Mr Sheikh Atiar Rahman, learned Advocate, appearing for the defendant/opposite party submits that the plaintiff is now aged about 19 years and he is a college going boy. At the time of institution of the suit he was a baby of 2  and half years having no sence of getting maintenance from his father. At that time his mother got married with another gentleman, and after such marriage the father became the custodian of his baby (plaintiff). But the mother of the plaintiff as well as his maternal grand parents did not allow him to reside with his father though both the families are residing in two separate houses contiguous to each other. In every day the plaintiff and defendant can see each other, but for the evil intervention of his grand parents the plaintiff is not allowed to live with his father, and even after attending the age of 19 years the plaintiff has been proceeding with the suit in revisional forum at their instigation. On consideration of the materials L.C record the Appellate Court rightly allowed the appeal and dismissed the suit by the impugned judgment and decree which occasioned no failure of justice.
8. On perusal of the judgments of the Courts below, it appears that admittedly the plaintiff is son of the defendant and his mother was divorced by the defendant. It is also admitted that their such divorce was in the mode of "Khula Talak". It is also admitted that his mother was remarried to another gentleman. In such admitted situation the Appellate Court found that as per Section 352 of the Mohammadan Law after second marriage of mother the father became custodian of his minor son, and he is also natural guardian, and, as such, he as custodian of the minor son will rear up him. The Appellate Court further found that the defendant now has been maintaining his son and, as such, the judgment and decree of the Trial court become infructuous. Apparently, the judgment of the Appellate Court is too short. The Appellate Court in deciding the appeal just considered the question of law i.e. Section 352 of the Mohammadan Law. In the admitted fact did not fill necessity of discussing the fact or to arrive into any decision about the fact since no question of fact was raised.
9. I have gone through the provision of law provides in Section 352 of the Mohammadan Law. As per the said section, a mother is custodian of a minor son till he attain the age of 7 years and of a minor daughter till she attain the age of puberty, but just on second marriage of the mother the father by operation of law becomes the custodian, for such custody no declaration by any Court is necessary. The father has the right to maintain his minor child, expect him nobody can claim custody of his minor children. In the instant case a baby of 2 and half years instituted the suit allegedly through his mother as representative. On perusal of the record it reappears that the divorced wife used their son as an instrument to harass her divorced husband residing in a house adjacent to her parent's house and her parents are not allowing her son to leave with his father. The said son now aged about 19 years and he is a college going boy. So, the question of custody does not require any decision since he is no more minor, he is competent enough to maintain himself. As per our social system, a son in the old age of his father or mother is bound to take care of them, but in the instant case the zealous divorced wife and her parents apparently instigating the son not to mix with his father which amounts to depriving the father from taking care of his son or from getting love and affection from him. In such situation, I hold the view that the suit is not at all maintainable because the suit can not be filed by a baby of 2 years, rather it was filed by his mother without having any locus standi.
10. Hence, this Rule is hereby discharged.
11. However, there is no order as to costs.
Send down the lower Court's records immedilltely.

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