Bombay High Court: In a case concerning custody of a 9-year-old son, Single Judge Bench of Shailesh P. Brahme, J. held that when the personal law is pitted with comfort and welfare of the child, latter would have upper hand, quashing the order granting custody to the respondent-father, granting him only visitation rights with temporary custody.
Background
The appellant-mother and the respondent-father solemnised their marriage in 2010 and a son was born out of the wed-lock in the year 2015. The mother had withdrawn from the company of the father since 2020 and started staying with her parents at Bidar, with minor son, while the father was residing at Latur. The father filed an application before the District Court under Section 7 of the Guardians and Wards Act, 1890 (Act) praying for custody of and declaration of his guardianship over the minor son. The District Court granted the custody of the minor son to the father while allowing only visitation rights to the mother.
Aggrieved by the said order of the District Court, the mother approached the High Court.
Analysis, Law and Decision
The Court opined that conjoint reading of Section 6 and Section 17(2) of the Act makes it obligatory to consider personal law applicable to the minor in the matter of guardianship and custody, therefore, in the present case it would be obligatory to look into the provisions of Muslim personal law as the parties to dispute are Muslims.
Referring to the commentary of Dr Tahir Mahmood, in his book “The Muslim Law in India” the Court noted that the hizanat or custody of the minor to his mother continues upto 7 years and thereafter it passes on to his father. In the case at hand the age of the child is 9 year 9 months and therefore, the mother’s hizanat stands terminated after completion of age of 7 years and gets transferred to the father.
Furthermore, it was observed that during the pendency of the instant case, the mother flouted various interim orders passed by the Court, granting temporary custody to the father, just to keep the custody of the child with herself. When cross-examined, she was even unaware of the school in which her child is enrolled. But the deficiencies or lapses on the part of the mother, is not sufficient to disentitle her to retain the custody of the minor.
It was pointed out that on the legalistic basis though merits of the matter tilt in the favour of father, but consideration to minor’s ordinary contentment, health and favourable surroundings also needs to be made. The bonding of the minor with the mother is far greater and child had flatly refused to go with the father.
Underscoring the precept that while exercising parens-patriae jurisdiction, when personal law is pitted with comfort and welfare of the child, the latter would have upper hand; the Court accordingly quashed and set aside the order of the District Court and granted the custody to the mother, while allowing visitation rights and temporary custody to the father.
[X v. Y, First Appeal No. 348 of 2024, decided on: 21-7-2025]
Advocates who appeared in this case:
Advocate for the Petitioners- Mahesh P. Kale, Advocate
Advocate for the Respondents- Madhaveshwari Mhase, Advocate