Writ Petition No. 8231 of 2015, Civil Application No. 2578 of 2015, Writ Petition No. 8232 of 2015 and Civil Application No. 2579 of 2015. Case: Arwa Taha Saifuddin and Ors. Vs Taha Mufaddal Saifuddin and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 8231 of 2015, Civil Application No. 2578 of 2015, Writ Petition No. 8232 of 2015 and Civil Application No. 2579 of 2015 |
| Counsel | For Appellant: Haresh Jagtiani, Senior Advocate, Mitali Harish and Apurva Marwari, Advs. and For Respondents: R.T. Lalwani i/b Jignesh Shah, Advs. |
| Judges | M. S. Sonak, J. |
| Issue | Guardians and Wards Act, 1890 - Sections 13, 17(3) |
| Judgement Date | December 23, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
M. S. Sonak, J.
1. Rule. With the consent of and at the request of learned counsel for the parties, Rule is finally disposed of.
2. Considering the nature of the order, which is proposed to be made, as also the commonality of issues involved, it will be appropriate to dispose of these two petitions with a common order.
3. The Petitioners, Arwa and Fatema are sisters. Since last seventeen years, they have been married to Taha and Ibrahim, who are cousins inter se. Arwa and Taha have five children viz. (i) Sakeenah (16), (ii) Mohammad (15), (iii) Tahir (12), (iv) Mustafa (10) and (v) Murtaza (7). Similarly, Fatema and Ibrahim have four children viz., (i) Khadija (17), (ii) Murtaza (14), (iii) Nisreen (11) and (iv) Husain (7). The children, are great grandchildren of the 52nd Dai-ul-Mutlaq, Syedna Mohammed Burhanuddin, a religious leader of the Dawoodi Bohra Community (a Muslim Sect), who passed away in Mumbai on 17 January 2014. Upon his demise, a dispute has arisen with regard to the claim for the position of 53rd Dai-ul-Mutlaq. Amongst other matters, a civil suit is pending on the Original Side of this Court between the rival claimants.
4. The rival claimants for the position of 53rd Dai ul-Mutlaq are Khuzaima Qutubuddin, the father of Arwa and Fatema (maternal grandfather of the children) on one hand and Mufaddal Saifuddin, Taha's father and Ibrahim's uncle (paternal grandfather of the children), on the other. This rift, has virtually split the marital ties between the parties, as Arwa and Fatema have aligned with Qutubuddin and Taha and Ibrahim have aligned with Saifuddin. The rift has split the Dawoodi Bohra Community, as well. In this mega rift, reminiscent of the strife for the Mogul Throne however, the children, all of them, find themselves in a predicament of having to chose between either of their parents, their tender and innocent age, notwithstanding.
5. Their parents have initiated proceedings against each other seeking various reliefs, including their custody and access. The orders impugned in these petitions arise out of Petition No. D-59 of 2014 instituted by Taha against Arwa and Petition No. D-58 of 2014 instituted by Ibrahim against Fatema in the Family Court at Bandra. The impugned orders are apparently innocuous. The impugned orders defer any decision on the issue of interim custody and access, until the Counselors or Child Welfare of Officers hold counseling sessions with the children and submit reports to the Family Court, which might assist the Family Court in making the difficult, but the necessary decision in the matter.
6. Considering the nature of the impugned orders, learned counsel for the parties were called upon to address me, inter alia, upon the scope and advisability of interference, at this stage. The learned counsel for the parties, together with all other issues, have made their submissions upon such issue, as well.
7. Arwa and Fatema, through Mr. Haresh Jagtiani, learned senior advocate appearing for them, recalled the atrocities and domestic violence allegedly, perpetrated against them by their husbands, which forced them to flee to America with the children and to seek asylum as well as legal custody there. They point out that the California Court, even after ruling that the appropriate legal forum to resolve the dispute would be the Indian Courts and after directing restoration of custody of the children to the fathers, had nevertheless, granted them several reliefs, including custody for seven days in each month as well as unlimited telephonic access. They bitterly complain that their husbands, in disregard to the directions made by the California Court, have virtually cut off the access to the children. Some of the children have been sent away to Surat and others are kept in virtual seclusion at Mumbai. They point out that no access is being offered, whether telephonic or otherwise. They point out that there is a very serious form of tutoring of the children and it is apprehended that the sessions with Counselors for the interview with the children in this situation, would be merely a farce. They submit that the Family Court ought to have made the orders for restoration of custody at least to the extent of seven days each month, so as to achieve level playing field, before directions were issued to the Counselors, to have interview sessions with the children and make their reports to the Family Court.
8. In opposition, Taha and Ibrahim, through their learned counsel Mr. R.T. Lalwani, were at pains to criticise Arwa and Fatema for having abruptly destroyed marital ties of over seventeen years and their act of abducting the children to America, on the very night of demise of 52nd Dai-ul-Mutlaq, in a bid to defeat the jurisdiction of the Indian Courts. They point out that the action was both premeditated and malicious. The action was in furtherance of installing their father Khuzaima Qutbuddin, as 53rd Dai-ul-Mutlaq, in preference to Mufaddal Saifuddin. The lives of children were put into peril. There was no regard to physical and emotional security of the children. Rather, the children were exploited by portraying upon social media network that they support the claim of their maternal grandfather, in preference to the claim of their paternal grandfather for the position of 53rd Dai-ul-Mutlaq.
9. Taha and Ibrahim point out that the elder children are admitted into an educational institution in Surat, which apart from offering high quality eduction is an institution founded by the family for religious instruction, which is extremely vital for all round development of the children. Similarly, the younger children school in Mumbai. They point out that the children are rightly embittered by the treachery of their mothers and they do not wish to return to their mothers. They rely upon the decision of the Hon'ble Apex Court in case of Gaytri Bajaj v. Jiten Bhalla (2012) 12 SCC 471, to submit that in matters of this nature, the wishes of children are paramount and based upon the same custody or access, even for a short duration of time cannot be granted to Arwa and Fatema. They submit that the very institution of these petitions is premature, as the Family Court is yet to make even an interim order on the issue of custody and access.
10. The record indeed indicates that Arwa and Fatema, on the night of demise of the 52nd Dai-ul-Mutlaq fled to America with the children. They eventually applied to the superior Court of California, Bakersfield C.A. for temporary restraining order pursuant to Domestic Violence Protection Act (DVPA) and for custody and visitation orders relating to the minor children. Taha and Ibrahim contested the proceedings, both, on grounds of jurisdiction and merits. A summary enquiry was held in the matter and finally, the California Court on 26 February 2015, made the following order:
"Accordingly, the Court finds that the facts described necessitate the return of the children to the custody of the Respondent forthwith, subject to the stay granted below. The Court has determined these orders are necessary to protect the minor children and are in the children's best interest. The Court awards joint legal custody to both parents, with sole physical custody to Respondent. Petitioner shall have visitation with the minor children in India up to 48 hours' notice to Respondent. Visitation shall occur in the city of residence of the minor children and may be up to one week in length each thirty days. Petitioner shall have reasonable telephone or other electronic contact with the minor children and the children shall have unlimited, unmonitored telephone or other electronic contact with the Petitioner.
Section 3424(b) provides that in the event there is no previous child...
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