Custody of minors governed by personal law must prioritize their welfare; Family Courts have jurisdiction to adjudicate custody cases under the Guardians and Wards Act.

JUDGMENT :

ANIL KUMAR-X, J.

1. Shri Dharmraj Chaudhary, learned counsel for the petitioners, Shri Ravidnra Prakash Srivastava, learned counsel for the respondent no.4 and Shri Amrit Raj, learned AGA for the State respondents are present.

2. This habeas corpus writ petition has been filed with a prayer to command the respondent nos.2 to 4 to produce the minor children (Abu Hasan aged about 10 years and Kaniz Fatima, aged about 5 years) (corpus) before this Court and hand over them to the custody of petitioner no.1 being their natural mother.

3. Learned counsel for the petitioners submitted that marriage of petitioner no.1 was performed with respondent no.4 in the year 2013 as per Muslim rituals. Petitioner nos. 1 and 2 (corpus) were born out of their wedlock. The petitioner no.1 was driven out from her matrimonial home by respondent no. 4 after she failed to fulfil his demands for dowry. The petitioners (corpus) are below 10 years of age. They were snatched from the custody of the petitioner no.1 before she was driven away from her matrimonial home. The petitioner no.1 and respondent are governed by Muslim personal law. Custody of minor children, in the case of parties professing Muslim law, lies with the mother. This Court, in Habeas Corpus Petition No. 12616 of 2014 ( Amal Irfa vs. State of U.P. and others ), has considered the law relating to custody of minors belonging to Muslim couples and has held that custody of an infant child lies with the mother, and she is entitled to the custody of a male child till the age of seven years.

4. Learned counsel further submitted that custody of minor children belonging to Muslim couples cannot be decided under the Guardians and Wards Act in view of the provisions laid down under Section 6 of the Act. Guardians and Wards act only discuss about guardianship and not about custody of minor. He submitted that the judgment delivered by this Court in Amal (supra) further strengthens the above view that custody of a minor under Muslim law can only be decided in a habeas corpus writ.

5. Learned AGA and the learned counsel appearing for respondent no.4 submitted that custody of minor with their father is not prohibited under Muslim personal laws.

6. Heard learned counsels for the parties and considered the submission raised by the petitioners.

7. Under the Guardians and Wards Act, 1890, Section 4(2) defines a guardian as a person having the care of the person of a minor or of his property, or of both his person and property. Similarly, under the Hindu Minority and Guardianship Act, 1956, Section 4(b) defines a guardian as a person having the care of the person of a minor or of his property or of both his person and property, and includes a natural guardian, a guardian appointed by the will of the minor's father or mother (testamentary guardian), a guardian appointed or declared by a Court, and a person empowered to act as such by or under any enactment relating to any Court of Wards. Thus, a guardian is a person having legal authority and responsibility for the care and protection of a minor, which may extend to the custody and upbringing of the minor, management of his property, or both. The term "guardian" is of wide import and is inclusive in nature, which encompasses within its ambit the concept of "custody" and does not exclude the same.

8. Now, let's address the next part of the argument: Section 6 is not applicable if the aggrieved parties are Muslim. At the outset, it is pertinent to note that Section 6 of the Guardians and Wards Act, 1890 does not exclude Muslims from invoking the provisions of the Act. Befo