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Andhra Pradesh High Court
MADHAVA RAO,SARDAR ALI KHAN
S. Rehan Fatima - Appellant
Versus
Syed Badinudin Pariviz - Respondent
Decided On : 08/05/1983
CUSTODY OF MINOR - HIZANAT - MOHAMMADAN LAW - HANAFI SECT - MOTHER'S RIGHT TO CUSTODY - WELFARE OF THE MINOR - WRIT OF HABEAS CORPUS - ALTERNATIVE REMEDY UNDER GUARDIANS AND WARDS ACT.
Fact of the Case:
The petitioner, a Muslim woman belonging to the Shia sect, filed a writ petition under Article 226 of the Constitution for the issue of a writ of habeas corpus for the custody of her 3½ year old son, Shaher Yar, who was in the custody of her estranged husband, the respondent, a Sunni Muslim. The petitioner claimed that under Mohammadan law, she was entitled to the custody of her son until he attained the age of seven years. The respondent contended that the petitioner had executed a Khulanama, a deed of divorce, and had relinquished her right to custody of the child. He also argued that the welfare of the child would be better served by remaining in his custody.
Finding of the Court:
The court held that the welfare of the minor was of paramount importance in determining the question of custody. The court observed that the child was clever enough to give an indication of his mind and that he had a strong bond with his mother. The court also noted that the respondent had stated that he was going to get married soon and that it would be difficult for him to provide the child with the same level of care as the petitioner. The court further held that under the principles of Mohammadan law applicable to the Hanafi sect, the mother was entitled to the custody of her male child until he had completed the age of seven years. The court rejected the respondent's argument that the petitioner had lost her right to custody by executing the Khulanama, as there was no mention of the custody of the minor in the terms of the Khulanama.
Issues: 1. Whether the mother is entitled to the custody of her minor son under Mohammadan law? 2. Whether the welfare of the minor is the paramount consideration in determining the question of custody? 3. Whether the execution of a Khulanama by the mother relinquishes her right to custody of the child?
Ratio Decidendi: 1. Under the principles of Mohammadan law applicable to the Hanafi sect, the mother is entitled to the custody of her male child until he has completed the age of seven years. 2. The welfare of the minor is the paramount consideration in determining the question of custody. 3. The execution of a Khulanama by the mother does not relinquish her right to custody of the child unless she marries a second husband.
Final Decision: The writ petition was allowed, and the respondent was directed to hand over the minor child to the petitioner within ten days.
SARDAR ALI KHAN, J.:- This petition for the issue of a writ of Habeas Corpus has been filed by the mother S.Rehan Fatima alias Syeda Rana Parviz for the custody of her 3 ½ year old minor. son Syed Wasim Hussain alias Shaher Yar; hereinafter referred to as 'Shaher Yar' for brevity. The petitioner and the respondent were married on 15-10-77 and the marriage was solemnized according to the principles of Mohammadan Law. The respondent-husband who is now having the custody of the child is working as a Lab Technician in the Central Research Institute for Unani and Homoeopathic Medicine, A.C. Guards, Hyderabad. It seems that after the marriage, the petitioner and her husband lived together happily in her father-in-law's house in Sha Ali Banda, Hyderabad till August, 1979. The offspring of the marriage is the son Shaher Yar who was born on 24-9-1979, and is now the subject of controversy for custody between his estranged parents. After the birth of the child, the husband took the wife to a rented house bearing No. 3.5.365 at Syed Ali Chebutra, Hyderabad. The wife alleges that the husband was addicted to vices like drinking and playing cards for which she used to protest and the landlord also asked her husband to vacate the house. He vacated the said premises and took another house bearing number 23.5.116 in the same locality. In fact, the couple, along with the child, were living in this house till the fateful night of 8-4-1983 when, the petitioner claims, she was driven out of the house by the husband at about 11.30 p.m. The petitioner shifted to her parents' house number 22.7.500/2 at Purani Haveli, Hyderabad and is said to be living with her parents along with her brothers and sisters. The case of the petitioner is that while she was forcibly driven out of the house on 8-4-1983 at the dead of night, she was not allowed to take her 3½ years old son along with her by her husband. The father of the petitioner also tried to intervene and get the custody of the child on her behalf, but his request was also turned down. The petitioner states that her son's health is deteriorating due to lack of proper food and clothing and maternal affection and that the respondent is forced to leave the child at different places with his friends when he goes out for work which has resulted in a very disjointed and chaotic life for the child. Her claim is that under Mohammadan Law and also under Ss. 7 and 25 of the Guardians and Wards Act 7 of 1980 (8 of 1890) she is legally entitled to the custody of the minor child. Therefore, she has filed this writ petition with the prayer that this Court may issue a writ of habeas corpus directing the respondent to hand over the custody of the child to her.
2. In the counter affidavit filed in this case, the respondent admits that he married the petitioner on 15-10-1977 and has been living with her for the past six years till the date of dissolution of their marriage. He admits that Shaher Yar is their son born on 24-9-1979, but denies the allegation of his addiction to vices like drinking and gambling. It is further alleged in the counter affidavit that his wife, the petitioner, has been unfaithful to him and has executed a "Khulanama" on 8-4-1983 resulting in the dissolution of the marriage between the parties. He further states that the petitioner also gave a declaration on the same day i.e., 8-4-1983 authorising the respondent to keep the minor son with him. The respondent says that his son is living with him in his parents' house and is being looked after properly by his peternal grandmother. The respondent has further conceded in his counter affidavit that under the Mohammadan law applicable to the Hanafi sect of Muslims, a mother is legally entitled to the custody of her son until he completes the age of seven years, but that is not an absolute right and a writ of Habeas Corpus cannot be issued in such circumstances. The petitioner has filed a reply affidavit controverting the allegations contained
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