1. Appeal under Section 47 of the Guardians and Wards Act, 1890, seeking custody of minor daughters from maternal grandparents after the mother’s suicide. (Para 1 , 2 )
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2026 Supreme(Kar) 573
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
D K SINGH, T.M.NADAF, JJ.
Shabaz Khan S/O Fairoz Khan - Appellant
Vs.
Naseema Banu W/O Muneer Hussain - Respondent
Miscellaneous First Appeal No.8148 Of 2025(GW)
Decided On : 17-07-2026
Advocates:
Advocate Appeared:
For the Appellant :Sri. Manjunath B R., Advocate
For the Respondent:Sri. Saira K. Zubair, Advocate For Sri. Abdul Ansar P., Advocate
Advocate Appeared:
For the Appellant :Sri. Manjunath B R., Advocate
For the Respondent:Sri. Saira K. Zubair, Advocate For Sri. Abdul Ansar P., Advocate
The welfare of the minor is the paramount consideration in custody disputes. When evidence suggests children are being tutored against a parent and the natural guardian is better suited for their development, the court may grant immediate permanent custody to safeguard the children's best interests.
Headnote:(A) Guardians and Wards Act, 1890 - Sections 10, 17, 19 and 25 - Mohammedan Law - Child Custody - Welfare of the minor is the paramount consideration - The court must observe the better interest of the children rather than mere legal right of the parent or guardian (Paras 19, 24, 25).
(B) Parental Alienation and Tutoring - Where evidence reveals that minor children are being tutored to reject a parent, such an environment is not conducive to the welfare of the children and indicates that their interests are not better safeguarded with the current custodians (Paras 21, 25).
(C) Fitness of Custodian - Factors such as education, financial stability, and access to superior educational facilities are critical in determining the best interest of the ward (Paras 20, 26).
Facts of the case:
A father sought permanent custody of his two minor daughters from the maternal grandparents following the death of the mother. The grandparents had alleged cruelty and dowry demands, leading to criminal proceedings, but the father was ultimately acquitted. The Family Court declared the father as the guardian but denied immediate permanent custody, ordering a phased transition through visitation rights to avoid sudden change. The father appealed, contending that the grandparents were alienating the children and were unfit custodians, citing their health issues and the criminal involvement of the grandparents' son.
Findings of Court:
The court found that the children were being tutored to avoid the father, as they refused to recognize him or look at him during interactions. The court observed that the father is educated, financially sound, and better positioned to provide the necessary education and moral values. Furthermore, the presence of the grandparents' son, who was accused under the Immoral Traffic Prevention Act, 1956, was deemed detrimental to the minor girls' welfare.
Issues: Whether the father should be granted immediate permanent custody of the minor children or if the phased approach ordered by the Family Court was in the paramount interest of the children.
Ratio Decidendi: The court held that the welfare of the minor is the sole paramount consideration in custody matters, overriding the mere legal rights of the parties. When current custodians use children as tools to deprive a parent of legal custody and engage in polluting the minds of the children, such actions justify the transfer of immediate custody to the natural guardian who is better equipped to ensure the children's development.
Result: Appeal allowed; permanent custody granted to the father, with specific visitation rights provided to the maternal grandparents.
Legal Category Hierarchy
- family law
- crime and sentencing
- practice and procedure
-
constitutional law
- parens patriae jurisdiction (Para 24)
Table of Contents
2. Father claims natural guardianship and better welfare; grandparents oppose, alleging the father caused the mother’s death and the children are bonded with them. (Para 8 , 9 )
3. Welfare of the child is the paramount consideration; father has an edge; grandparents are alienating the children and tutoring them against the father. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 22 , 23 , 24 , 25 , 26 )
4. In child custody disputes, the welfare of the minor child is the paramount consideration, superseding the legal rights of parents or personal law. (Para 19 )
5. Appeal allowed; the father is granted permanent custody of the minor daughters; grandparents are granted defined visitation rights. (Para 27 )
6. What is the paramount consideration in child custody disputes under the Guardians and Wards Act, 1890?
The welfare and best interest of the minor child is the paramount and overriding consideration, not the mere legal right of a parent or guardian. (Para 19 )
7. Is a father's right as a natural guardian under Muslim personal law conclusive in custody proceedings?
No, the father's right as a natural guardian is not conclusive; the court must assess and prioritise the child's welfare over strict legal or personal law rights. (Para 19 , 20 , 24 )
8. Can a court consider evidence of a grandparent alienating a child from a parent in a custody decision?
Yes, a court can consider actions of a grandparent in separating or alienating a child from a parent as detrimental to the child's welfare and a basis for granting custody to the parent. (Para 16 , 17 , 25 )
9. Does the acquittal of a father in a criminal case related to the mother's death affect child custody proceedings?
Yes, an acquittal is a relevant changed circumstance; the court may consider that the allegations of cruelty leading to the mother's death are not proved, thus removing a ground for denying custody. (Para 14 , 20 )
10. Can a court order immediate custody of a child to a parent despite the child's current attachment to grandparents?
Yes, if the court finds that the grandparents are alienating the child and the father is better placed to ensure the child's welfare, immediate custody can be granted. (Para 23 , 24 , 25 , 26 )
JUDGMENT :
(PER: HON'BLE MR. JUSTICE T.M.NADAF)
This appeal under Section 47 of Guardians and Wards Act, 1890, 'G & WC Act', for short, filed by the father and his relatives seeking custody of minor children by name Kumari. Amairan Fathima and Kumari. Harmain Fathima (daughters of petitioner No.1), assailing judgment and order dated 09.10.2025 in G & WC No.13/2023 passed by the Principal Judge, Family Court, Hassan, 'the Family Court', for short wherein the Family Court declined permanent custody, however granted visitation rights.
2. The parties are referred to as per their ranking before the Family Court.
3. Facts germane to file the present appeal are as under:
AS PER THE PETITIOENRS:
3.1 Petitioner No.1 is the father and petitioner No.2 is his mother and Petitioners 3 and 4 are sisters of petitioner No.1.
3.2 Petitioner No.1 married the daughter of respondents 1 and 2, by name Numrah Seeneen (mother of the minor Wards) on 05.10.2015 at HBS Hall in Hassan City as per Muslim law and customs. Numrah Seeneen is the only daughter to the respondents. After the marriage, Numrah Seeneen joined the matrimonial home of petitioner No.1. Since he was working in Riyadh as Salesman in a company, he had taken the wife to Riyadh after marriage. They came to India for the delivery of first daughter in the year 2017. On 12.10.2017, Numrah Seeneen gave birth to first daughter Kumari. Amairan Fathima.
3.3 In the month of December 2017, petitioner No.1, Numrah Seeneen with their first child went to Saudi along with respondents. Petitioner No.1 had taken care of entire expenses of the respondents from India to Riyadh. The respondents spent about six months in Riyadh and then returned to India.
3.4 In the month of April 2019, Numrah Seeneen became pregnant for the second time and again, she was brought to Hassan by petitioner No.1. On 14.10.2019, second child Kumari. Harmain Fathima was born.
3.5 There was no instance of marital discord between petitioner No.1 and Numrah Seeneen. After the birth of second child, petitioner No.1, Numrah Seeneen, both the children along with the respondents, went to Riyadh and petitioner No.1 had taken care of all the expenses, as he did in the first time when the first child was born.
3.6 On 18.10.2021, Numrah Seeneen came to India and on 10.12.2021, petitioner No.1 thereafter came to India from Saudi on 19.01.2022 to attend some family function in their family.
3.7 On 22.01.2022, petitioner No.1 had to undergo some operation immediately, which was fixed on 22.01.2022 in a Clinic at Bengaluru and he was admitted in the said hospital. When Numrah Seeneen wanted to visit the hospital along with the children, due to Covid-19 pandemic, she was not allowed by petitioner No1. and his family members. This was the reason for Numrah Seeneen to have some articulation with petitioner No.1 and his family members and in an hasty decision, she hanged herself in the bathroom in the house of petitioner No.2. Though the petitioners and neighbors broke open the door of the bathroom and took her to hospital, but she did not survive.
3.8 The respondents after receiving the information, came down to Bengaluru from Hassan and at the instigation of some disgruntled members of the family, lodged a complaint on the following day with the Rajajinagar Police Station, Bengaluru making accusation of dowry demands and abatement to suicide. The police having registered the complaint, issued FIR for the offences punishable under Section 304B R/w Section 34 of IPC against the petitioners. The children who were with the family of the petitioners were forcibly taken by the son of the respondents by name Nazir Hussain with the assistance of the Police and thereafter, did not return the children. Petitioner No.1, who was arrested in relation with the afore accusation, released on bail by the order of this Court after eight months. The Police having completed the investigation, filed charge sheet against the petitioners and the matter was committed to the Session
