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MADRAS HIGH COURT
KRISHNASWAMI NAYUDU
Zynab Bi alias Bibijan
Versus
Mohammad Ghouse Mohideen
O.P. No 100 of 1951
Decided On : 17 May, 1951
GUARDIAN AND WARDS ACT - CUSTODY OF MINOR CHILDREN - MOTHER'S RIGHT TO CUSTODY - CONDITIONS AND LIMITATIONS - WELFARE OF THE CHILD - INTERPRETATION OF S. 25.
Fact of the Case:
A Muslim mother filed a petition under S. 25 of the Guardians and Wards Act, 1890, seeking custody of her two minor children, a girl aged five and a boy aged two, from her husband. The husband opposed the petition, contending that he was the natural and legal guardian of the children and that the mother was not entitled to custody. The mother alleged that the husband had married a second time and that he had taken away the children forcibly.
Finding of the Court:
The court held that the mother was entitled to the custody of the children under the Hanafi school of Muslim law, which governs the parties. The court found that the mother had not lost her right to custody by residing at a distance from the father's place of residence, as the distance was not such as to prevent the father from visiting the children. The court also found that the welfare of the children would be best served by placing them in the custody of the mother.
Issues: 1. Whether the mother is entitled to the custody of the children under Muslim law? 2. Whether the mother has lost her right to custody by residing at a distance from the father's place of residence? 3. What is the paramount consideration in determining the custody of minor children?
Ratio Decidendi: 1. Under the Hanafi school of Muslim law, the mother is entitled to the custody of her male child until he reaches the age of seven and of her female child until she attains puberty. 2. The mother does not lose her right to custody by residing at a distance from the father's place of residence, unless the distance is such as to prevent the father from visiting the children. 3. The paramount consideration in determining the custody of minor children is their welfare.
Final Decision: The court allowed the petition and directed the father to hand over the two minors to the mother. The father was entitled to visit his children twice a week.
A Muslim mother of her two infant minor children, a female and a male of the ages of about five and two respectively applies in this petition for custody of her two infants from the Respondent, who is her husband, and the petition is laid under S. 25, Guardians and Wards Act. Parties were married on 14-12-1941 and have four children, Mumtazunnisa aged about seven years, Ghiasunnisa aged about five years, Jameelunnisa aged about three years, and Ravoofuddin aged about one year and ten months. Ghiasunnisa and Ravoofuddin are the minors concerned in this petition. The said minor children are admittedly at present in the custody of the Respondent, the other two Mumtazunnisa and Jameelunnisa being with the petitioner. The petitioner was living with the respondent till about two months after the birth of the minor boy, Ravoofuddin, and it is stated by the petitioner that for about two years after the marriage there have been some disputes between the husband and wife regarding the properties of the wife and the allegation is that the husband, the respondent herein, wanted to have these properties for himself, that he therefore persuaded the wife to mortgage the same, that, in fact, a mortgage for Rs. 2,000 was executed and that on account of these differences there have been certain ill-feelings and for some time they have been living separately. It is alleged that the respondent married for the second time on 13-1-1949 and lived with his second wife separately for some time and that the said marriage was dissolved by Khula through a Khazi on 2-9-1949. It is stated that the Respondent came to the Petitioners residence when she was residing with her uncle, and took away three of the children forcibly, but subsequently the children were brought back to the petitioner. The petitioner states that eventually, on 30-1-1951, the respondent came to her residence when no male member was present and took away the two minors, Ghiasunnisa and Ravoofuddin, that the petitioner raised an alarm and cried aloud for assistance and that before any assistance could be available the respondent took away the children and has been retaining them till now.
2. The contention of the petitioner is that both under Mahommedan law and in the interests and the welfare of the children, she is entitled to their custody. Certain allegations are made in the petition that the respondent is of bad character, that he is involved in debt, that the children cannot be properly taken care of by him and that in the interests of the children it is essential that they should be restored to their legal guardian, the petitioner. The allegations as to his character, financial position, and unemployment are denied by the respondent in his counter affidavit. The respondents case is that he has always been kind to his wife and children, that he has been anxious to have his family with him, but due to the evil advice of the uncle of the petitioner, she is refusing to live with him, with her children. There were also criminal proceedings between the parties. As regards the removal of the children on 30-1-1951, respondent denies that he took them away forcibly, but says that he went to her uncles house where she was staying, had a talk with her and persuaded her to come away with him so that they could live happily, that she promised to join him with the children in a short time He then told her that in that case he would have two children, the two minors concerned in this petition, with him and the other children would remain with her to which she agreed, and under that arrangement, the respondent says, that the two children came away with him and that they are now being well looked after and treated properly by the respondents step-mother and his sisters.
3. The main attack of the respondent is against the uncle of the petitioner who is stated to be an unscrupulous person and the respondent says that it is on account of his evil advice all these troubles are stated to have a
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