Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Kar) 1404

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S.HEMALEKHA, J.
Sri. Riyaz S/o Late Apsar – Petitioner
AND:
Smt. Noorjan A. D/o C. Anwer Jan – Respondent
Writ Petition No.57676/2018 (GM-FC)
Decided On : 07-07-2022

Advocates appeared:
For the Appellant :Sri Nandish Gowda G.B., R.B. Sadasivappa, Advocates
For the Respondent:Sri Ravindranath K, Sri S.V.Shastri, Advocates

Under the Mohammedan Law, a divorced mother is entitled to custody of a male child below seven years, and the paramount interest of the child must be considered in custody matters.

Headnote:
Welfare - Guardianship and Custody - Guardians and Wards Act, 1890 - Section 12 - Mohammedan Law, Section 352 and 354
Fact of the Case:

The father filed a petition challenging the order granting interim custody of the minor child to the mother under Section 12 of the Guardians and Wards Act, 1890. The father contended that the parties were governed by Muslim Personal Law and the mother was not entitled to custody due to divorce.
Finding of the Court:

The court found that under the Mohammedan Law, the mother is entitled to the custody of a male child below seven years, even if divorced. The court upheld the trial judge's decision to grant custody to the mother, emphasizing the paramount interest of the child.
Issues: The main issue was whether a divorced wife is entitled to custody of a minor child under the Mohammedan Law.
Ratio Decidendi: The court held that under Section 352 of the Mohammedan Law, the mother has the right to custody of a male child below seven years, and Section 354 does not disqualify a divorced female from custody. The court also considered the Kerala High Court's decision in Bushara's case, which supported the mother's entitlement to custody.
Final Decision: The writ petition filed by the father was dismissed, affirming the mother's entitlement to custody. The father was granted liberty to seek custody of the male minor child over seven years, in accordance with the Mohammedan Law.

ORDER

Welfare of the child would be paramount consideration of the Court as it is the matter for well being of the child.

2. The present petition is filed by the father of the minor child R.Asadulla, who is the husband of the respondent assailing the order dated 13.12.2018 on I.A. No.3 filed by the mother of the minor under Section 12 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the G & WC Act, 1890’ for short) in G and WC No.149/2018 pending on the file of I Additional Principal Judge, Family Court, Bengaluru (hereinafter referred to as ‘the Trial Court’ for short) whereby the interim custody of the minor child aged about four years was directed to be handed over to the respondent-mother herein.

3. The parties herein are referred to as petitioner-father and respondent-mother for the sake of convenience.

4. Heard the learned Counsel for the petitioner-father and the learned Counsel for the respondent-mother and perused the material on records and also the impugned order of the Trial Court.

5. The respondent-mother filed petition under Section 10 and 7(a) of the G & WC Act, 1890 read with Section 7(g) of the Family Court Act, 1984 seeking to appoint herself as the guardian of the minor. During the pendency of the petition, the respondent-mother filed an application-I.A.No.3 seeking interim measure for the custody of the minor child R.Asadulla. The petitioner-husband filed objections contending that the respondent-mother is disentitled for the custody of the minor child R. Asadulla.

6. The learned trial Judge on appreciation of the material on record held that the child is of tender age which requires love, affection and care of the mother, as such, reserving liberty of visitation rights to the father, the custody of the minor child was given to the respondent-mother and accordingly I.A.No.3 was allowed and the petitioner-husband was directed to hand over interim custody of the minor child/Master R.Asadulla.

7. Being unsatisfied with the order passed by the I Additional Principal Judge, Family Court, Bengaluru on I.A. No.3 in G &WC.No.149/2018 petitioner-father has preferred the present petition.

8. It is the contention of the learned Counsel, Nandish Gowda G.B. appearing for Sri. R.B. Sadashivappa representing the petitioner that the parties are not governed by the Guardians and Wards Act, 1890 but they are governed by the Muslims Personal Law and contended that the respondent-mother is not entitled for the custody of the minor son as she is the divorced wife having obtained Khulanama by mutual consent and as per the provisions envisaged under the Mohammedan Law and as such, sought to dismiss the application filed by the respondent-mother and allow the present petition.

9. Per contra the learned Counsel for the respondent-mother sought to justify the order passed by the learned Trial judge and contended that as per the provisions of the Mohammedan Law the interim custody of male minor child upto the age of seven years has to be accorded to the respondent-mother and also contended that the trial Court considering the interest and welfare of the child has rightly ordered custody of the minor child to the respondent-mother. It is also brought to the notice of this Court the subsequent events that have been transpired between the parties and contended that the petitioner-husband during the pendency of the petition, has remarried and in the said wedlock a child is born and as such, contended that the interim custody if given to the petitioner-husband would be against the welfare of the child.

10. Having heard the learned counsel for the parties the only point that arises for consideration in the petition is :

‘whether divorced wife is entitled for custody of minor child under the Mohammedan Law?’

11. It is not in dispute that the parties are Muslims and governed by the Personal Law. It is also not in dispute that a Khulanama was entered into between the parties and the husband and wife are living separately. The applicat