Samudra Ejazul Haque and others
Farhana Azad and another
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Hassan Ameen J
Samudra Ejazul Haque and others………………….Petitioners
Farhana Azad and another………………………………..Respondents
April 22, 2007.
Case referred to-
Abdul Jalil and others Vs. Mrs. Sharon Laily Begum Jalil (1998) 18 BLD (AD) 21.
Dr. M. Zahir, Senior Advocate (Mohammad Ozair Farooq, Advocate with him) instructed by Mohammad Nawab Ali, Advocate-on-Record- For the Petitioners.
A.K.M. Shahidul Huq, Advocate-on-Record- For the Respondents.
Civil Petition for Leave to Appeal No. 346 of 2007.
(From the Judgment and Order dated 1.3.2007 passed by the High Court Division in Writ Petition No.770 of 2007)
Md. Ruhul Amin CJ.- The respondent No.1 in Writ Petition No.770 of 2007, which was filed questioning custody of two minors, a boy and a girl born on December 11, 2002 and August 30, 2000 respectively, has filed this petition for leave appeal against the judgment and order dated March 1, 2007 passed in the aforesaid writ petition.
2. The writ petition was filed by the mother of aforementioned boy and girl, alleging inter alia that the said boy and girl are being detained illegally by the writ respondent Nos. 1-3 i.e. father, grand father and grand mother.
3. The High Court Division made the Rule obtained in the aforementioned writ petition absolute in the following terms:
“two minors, namely, Sagorika Noami Azad Huq and Mehrab Faraj Huq are being held in the custody of the respondent Nos.1-3 without lawful authority and in an unlawful manner. The respondents are directed to handover the above two minors to the custody of the petitioner by the noon of March 14, 2007. The High Court Division also made the direction about the visiting or seeing the minors by the writ respondents to the effect “the respondents shall have the liberty to see the minors twice in a week at the residence of the petitioner or at a place to be agreed upon between the parties. If any dispute (seeing the minors) arises in this regard it will be taken care of by the Family Court”.
4. The High Court Division also directed the 5th Court of Additional Assistant Judge and Family Court, Dhaka to dispose of the Family Case No. 51 of 2007 within 3 (three) months from the date of receipt of the copy of the judgment.
5. The writ petition was filed alleging, inter alia, that the writ petitioner was married to the respondent No.1 on January 15, 1993, that she was subjected to torture and oppression and was in continuous physical pressure, that two minors Shagorika Newaji Azadi Huq (daughter) and Meharab Farhaj Huq (son) were born to the writ petitioner and the writ respondent No.1 on August 30, 2000 and December 11, 2002 respectively, that while writ petitioner’s husband, respondent No.1, was in USA from February 4, 2005 she was tortured by the writ respondent Nos. 2 and 3 and that inspite of the torture she for the sake of her two minor children did not take any steps to come out of the marital life, that respondent Nos. 2 and 3 without caring about her children and the welfare of the minors compelled the writ respondent No.1 to divorce the writ petitioner on April 23, 2006, that the respondent No. 3 upon playing a dubious role kept the writ petitioner in the house of the respondent Nos. 2 and 3 for 90 days assuring reconciliation between her and the respondent No.1 but after 90 days the respondent Nos. 2 and 3 called writ petitioner’s brothers and made unfounded allegations against the writ petitioner and that upon obtaining signature on blank stamp papers drove the writ petitioner out of her conjugal home i.e. from the house of the writ respondent Nos.1-3 detaining the minors in the house of the respondent Nos. 2-3. The writ petitioner has also alleged that she was allowed to visit her son and daughter on two occasions during the period of 8 months and that writ petitioner was not allowed to talk to her son and daughter over telephone and that she was also not allowed after the afore mentioned period to see her children. It has further been alleged by the writ petitioner that children were pressurized not to talk their mother. It was contended by the writ petitioner that the children being minors the mother under the law is entitled to have the custody of the minors, that the respondents upon illegally detaining the children deprived them of the care as well as love and affection of the mother, that the children being minors the mother is the appropriate person for the custody of the minors in the background of the question of welfare of the minors. It has been stated by the writ petitioner that the respondent No.1 returned to Bangladesh with a wife and going to hold weeding reception, that the respondent Nos. 2 and 3 on the basis of the forged under taking denying the writ petitioner from seeing her children. It has been alleged by the writ petitioner that the respondent No.1 is under contemplation to take the minor children to U.S.A. and the children if so taken to the United States they would be taken to a house which is not their mother’s house but step mother’s home and in that case the welfare and best interest of the children will be seriously neglected and disregarded.
6. It has been asserted by the writ petitioner as the children, who are minors, are being detained illegally in the custody of the respondent Nos. 1-3 and as respondent No.1 had married upon divorcing the writ petitioner the mother of the minors, consequently as the children’s welfare interest would be seriously prejudiced if they are being detained in the custody of the respondent Nos. 1-3, the writ petition is being compelled to file the writ petition seeking custody of the minors.
7. The Rule obtained by the writ petitioner was jointly opposed by the respondent Nos. 1-3 denying the averments made in the writ petition except the fact that respondent No.1, in the writ petitioner, and the writ petitioner were married on 15 January, 1993 and that out of their marriage a boy and a girl born on December 11, 2002 and August 30, 2000 respectively. It was the case of the respondents that writ petitioner has not come before the High Court Division with clean hands and that although mother has right to the custody of the children but the writ petitioner being guilty of immoral activities has lost the right of custody of the children, that in deciding question of custody of minors the primarily question would be before the Court welfare and interest of the minors, that custody and guardianship of a minor is being dealt with by the Guardians and Wards Act, 1890 and the Family Courts Ordinance, 1985 and that writ petition having had filed Family Case No. 61 of 2007 in the 5th Court of Additional Assistant Judge and Family Court, Dhaka in the right of the provision of the Family Courts Ordinance, 1985 the writ petition is not legally well conceived one, that the writ petition has been filed raising the question already raised in the Family Case No. 61 of 2007 and as such the writ petition is not maintainable, that the respondent Nos. 1-3 are father, grandfather and grandmother respectively of the minors and as such the custody of the minors with the respondents cannot be said to be illegal or that the minors are detained illegally in the custody of the respondents, that under no circumstance the minor would be taken out of Bangladesh and that the writ petitioner would be allowed to see the minors at agreed time and place without any hindrance till the matter of custody of the minors is decided by the Family Court. It has been alleged by the respondents that respondent No.1 while in USA from February 4, 2005, he on query came to know that the writ petitioner was spending his time with her old and new boy friends in restaurants and parks leaving the children in the custody of others, that respondent No.1 has also “irrefutable evidence that the petitioner established illicit relationship, with a lover whom she was meeting regularly” and that respondent No.1 on his return from USA on further inquiry was satisfied about illicit relationship of the writ petitioner and that in that state of the matter the respondent No.1 divorced the writ petitioner on April 23, 2006 on “the ground of infidelity”, that because of the life style of the writ petitioner she is not entitled to the custody of the minors.
8. It was contended on behalf of the writ petitioner that she is entitled to custody of the minors till the question of custody is otherwise adjudicated by the competent Court and that till that time writ petitioner has absolute right to have the custody of the minors and that because of the settled principle of law the custody of the minors can not be with the respondent Nos. 1-3.
9. As against that it was contended on the side of the respondents that the writ petition is not maintainable since the question of custody will be taken care by the Family Court in Family Case No.61 of 2007 and that in the background of the facts stated by the respondent Nos. 1-3 in their affidavit-in-opposition and the supplementary affidavit the writ petitioner can not claim custody of the minors since she has resorted to a life style which is prejudicial to the welfare and best interest of the minors. It has also been contended from the side of the respondents that till the question of custody of the minors is being adjudicated by a competent Court the minor should be with the respondents and in the custody of the respondent Nos. 1-3, that the writ petitioner so filed is a misconceived one since the minors are not in the custody of the respondents without lawful authority.
10. The High Court Division in making the Rule absolute observed:-
“In deciding the question of custody of the minor children the paramount consideration before the Court is welfare of the minors. The term welfare must be read in the largest possible sense which means that every circumstance must be taken into consideration and the Court must do what under the circumstances a wise parent acing for the true interests of the child would do or ought to do. It is difficult for us in the habeas corpus petition to take evidence without which the question as to what is the interest of the child cannot satisfactory be determined. ………………………………………….Till the custody of the minors is decided by a competent Court, mother is legally entitled to retain the custody of her minor children. Before adjudication of the custody of the minors by a competent Court if they remain in the custody of anybody other than the mother, that custody will be without lawful authority. The Family Court will take care of all aspects of the case and will come to a definite finding as to who is/are entitled to the custody of the minors taking into consideration the paramount question of welfare of the minors but till then the minors shall remain in the custody of the mother as provided under the law”.
11. It is seen from the judgment of the High Court that in opposing the Rule the respondents primarily contended that the writ petitioner leading an immoral life and as such she should not be allowed the custody of the minor children and her previous conduct shows she cannot look after the welfare of the minors and that having been divorced by the respondent No.1 she would not be able to maintain the Children.
12. The allegation as to leading of immoral life by the writ petitioner is too wide and that the matter of incapability of the writ petitioner to maintain the children is the matter to be adjudicated by the Family Court while deciding the question of custody of the children. It may be mentioned before the writ Court no substantial material was brought on record to establish the allegation of leading an immoral life by the writ petitioner.
13. It is interesting to notice that some time the writ respondents were opposing the custody of the minors with their mother alleging that the writ petitioner being divorced would not be able to maintain the minors and at the same time it was stated that the writ petitioner is a teacher at Scholastica School, Dhaka and as such it is not possible on the part of the writ petitioner look after the minors. The High Court Division considered these contentions of the respondents and thereupon has observed “It cannot be said that a working woman divorced by her husband in unworthy of the custody of her minor children”.
14. The learned counsel appearing in support of the petition for leave to appeal has submitted that the High Court Division wrongly made the Rule absolute without taking into consideration that the matter of custody of the minors is awaiting adjudication by the Family Court in Family Suit No. 61 of 2007 filed by the writ petitioner, respondent No.1 herein and in that state of the matter the High Court Division ought not have exercised its jurisdiction under Article 102(2)(b)(I) of the Constitution and thereupon ought to not have declared custody of the minors with the father and the grand parents as without lawful authority or in an unlawful manner, that in the background of the fact that with regard to the custody of the minors Family Suit No. 61 of 2007 is now pending before the Family Court, Dhaka, the Writ Petition, having been filed on the self same issue being not maintainable and that facts brought on record being highly contentions and disputed which cannot be decided in a proceeding which is adjudicated upon affidavits and in a summary manner the High Court Division was in error in making the Rule absolute on the view that the mother has the legal right to have the custody of the minors but totally left out of consideration the material fact that the mother i.e. the writ petitioner lost right of custody of the minors “being a mother habituated with illicit relationship and guilty of immoral activities”, that the High Court Division in making the Rule absolute did not consider the facts brought on record showing that life style of the mother of the minors is pre-judicial to the best welfare and interest of the minors, that the High Court Division was in error in making the Rule absolute while the said Division itself observed “It is difficult for us in the habeas corpus petition to take evidence without which the question as to what is the interest of the child can not satisfactory be determined” and that also without considering the fact that writ petitioner has filed a case, Family Case No. 61 of 2007 in the 5th Court of Additional Assistant Judge, and Family Court, Dhaka under the provision of Guardian and Wards Act, 1890 and the Family Courts Ordinance, 1985 seeking the relief as to the custody of the minors, that the High Court Division was in error in making the Rule absolute in that the writ petition is misconceived one and the same was not maintainable since as regard the relief sought to be obtained from the High Court Division the writ petitioner has filed as suit before the Family Court and the said suit awaits adjudication involving the issue of custody of the minors, that the High Court Division failed to take into consideration that the respondent Nos.1-3 being father and paternal grand parents respectively and the minors are being in their custody relief sought upon invoking the provision of Article 102(2)(b)(I) of the Constitution was not maintainable and that the High Court Division has also lost sight of the fact that custody of the minors with the writ respondent Nos. 1-3 is on the basis of the express consent of the mother in the background of the undertaking given by the mother on July 7, 2006 and as such the writ petitioner was debarred from taking any exception as regard to the custody of the minors with the petitioners herein.
15. The contentions so made have already been addressed by the High Court Division and in that view of the matter we do not find any merit in the contentions upon making which leave to appeal is sought. It is suffice to say the undisputed fact is that the children whose custody is being sought by the mother are minors and under the law unless the mother disqualifies herself for having the custody of the minors she is entitled to the custody of the minors for the period as provides by law. The minors in question have not reached that age or that are not of the age disentitling the mother to have the custody of the minors in question. It is seen that the petitioner No.1 (respondent No.1 in the writ petition) has already married for the 2nd time upon divorcing the writ petitioner. In the state of the matter the minors, if allowed to be in the custody of the writ respondent No. 1 would certainly be in the house of their step mother, which fact as we find from the judgment of the High Court Division was rightly considered, will not be congenial to the best welfare and interest of the minor. In the background of the facts on consideration whereof High Court Division made order as to custody of the minors with their mother cannot be considered unsustainable in law. Contention as to the maintainability of the writ petition has also been considered by the High Court Division upon referring the case of Abdul Jalil and others Vs. Mrs. Sharon Laily Begum Jalil reported in (1998) 18 BLD (AD) 21 where in the background of the facts similar to the facts of the case before us and in the background of facts alleging which writ petition was filed under Article 102(2)(b)(I) of the Constitution seeking custody of the children by the mother, the question of maintainability of the writ petition having been raised it has been observed “aggrieved mother has the right to move the High Court Division under Article 102(2) of the Constitution for immediate custody of the children which may be ordered in the interest and for the welfare of the said children”. We have already observed that the allegation of leading immoral life by the mother made from the side of the writ respondents were not substantiated by tangible material and moreover the said allegation would be adjudicated by the Family Court on consideration of the evidence, if any, brought before the said Court and in that state of the matter we are of the view the High Court Division was correct in not considering the contention of the petitioners herein as to leading of immoral life by the respondent No.1 herein and thereupon in not disentitling her from the custody of the minors.
16. The High Court Division while making the Rule absolute has also made the provision for visiting the minors by the father as well as the grand parents while the minors are in the custody of the mother and that in case of difference as to the time and place of visiting the minors the final decision has been left with the Family Court before whom Family Case No. 61 of 2007 is pending.
17. In the background of the discussion made above and in the state matter we do not find any reason to interfere with the judgment of the High Court Division.
Accordingly, the petition is dismissed.