Welfare & Comfort Of Child Prevails When Pitted Against Personal Law: Bombay High Court Lets Muslim Mother Retain Custody Of 9-Yr-Old

The Aurangabad bench of the Bombay High Court on Monday (July 21) held that even when a personal law is pitted against the welfare and comfort of a child, the latter would always have an upper hand. 

Single-judge Justice Shailesh Brahme noted that the Muslim Personal Law allows the custody of a minor above the age of 7-years to the father and the child in the instant case was 9-years-old. However, after personally interacting with the child, the judge noted that he has a greater bonding with his mother and thus granted custody in her favour.

"In the present case, the mother has flouted interim orders passed by this Court. But that will not disentitle her to retain custody of the child. On the legalistic basis though merits of the matter tilt in the favour of the father, considering minor's ordinary contentment, health and favourable surroundings, this Court is inclined to decide in favour of the mother. When the personal law is pitted with comfort and welfare of the child, latter would have upper hand," the bench held, while referring to various rulings of the Supreme Court. 

The bench referred to the commentary by Dr.Tahir Mahmood in book of 'The Muslim law of India' particularly the chapter dealing with “Guardianship and custody of minor under personal law."

Referring to the book, Justice Brahme said, "It is stated that guardianship of a person in relation to a child vests primarily to its father. The concept of hizanat (custody) and wilayat-e-nafs (guardianship) are distinct. The physical custody and day-to-day upbringing is the hizanat. All other aspects than hizanat would fall in wilayat-e-nafs. It is specifically provided that primarily hizanat of a minor is with mother up to particular age. After reaching that age, custody of a mother, who is hazina is taken away and vested with father who is called as wali and hazin of the child."

The bench in its order said the Family Court, which had on December 18, 2023 ordered handing over the custody of the minor child to the father, erred in its approach.

"There is want of humanistic approach. I do not find that interest of the minor is better secured by handing his custody to the respondent. It is overlooked that respondent did not adduced the evidence to show that he has better financial capabilities. There is no female member in his family. While exercising parens patriae jurisdiction, the wish of the minor as well as attending circumstances need to be considered. In that view of the matter impugned judgment and order is unsustainable," Justice Brahme opined. 

With these observations, the bench allowed the appeal filed by the mother against the Family Court judgment directing handing over custody of the minor son to the father.

Appearance:

Advocate Mahesh Kale appeared for the Mother.

Advocate Madhaveshwari Mhase instructed by Lex Aquila represented the Father. 

Case Title: KSIQ vs IAQ (First Appeal 348 of 2024)

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