IMPORTANT POINT
Under Muslim law, after age of 7 years, it is father who is entitled to custody of child unless Court holds on evidence, father is not a fit person or that is not conducive to physical or mental health of child.

JUDGMENT (COMMON)

P. Sam Koshy J.—Heard Mr. Ali Farooque, learned counsel for the appellants and Mr. Syed Ahmed Ali, learned counsel for the respondent.

2. These are two Family Court Appeals filed by the appellants herein against the order dated 24.05.2024 passed in two O.P.s on the file of the Judge, Principal Family Court-cum-XIII Addl. Metropolitan Sessions Judge, Hyderabad (for short the ‘Family Court’) between the same parties i.e. the appellants and the respondent in O.P.No.1433 of 2021 and O.P.No.1865 of 2021.

3. O.P.No.1433 of 2021 was filed by the respondent seeking for custody of his two minor children namely Syeda Khatija Nausheen, born on 09.11.2019 and Syed Mujtaba Abdul Nasir, born on 07.12.2020. Likewise, O.P.No.1865 of 2021 is one which has been filed by the appellants herein seeking to appoint them as a permanent guardian and custodians of the two minor children namelySyeda Khatija Nausheen and Syed Mujtaba Abdul Nasir. O.P.No.1433 of 2021 stood allowed granting custody of the afore mentioned minor children to the respondent who is the biological father of the two children, and at the same time, the Family Court has granted the appellants herein the visitation rights of the minor children on every Sunday between 9:00 AM to 6:00 PM and fifteen days time during the summer vacation every year till the two minor children attain the age of majority. Whereas, O.P.No.1865 of 2021 was dismissed with the aforementioned visitation rights that were conferred on the appellants.

4. It is these two judgments which have been challenged by the appellants in the instant two appeals.

5. The facts of the case, in brief, are that the appellants in the instant two appeals are father-in-law and mother-in-law of the respondent and they are also the maternal grandparents of the two minor children whose custody they are seeking. The respondent is the biological father of the two minor children, the custody of whom has been given to him. The daughter of the appellants late Muniza Hasan Khan was married to the respondent on 20.04.2018 and two children were born from the said wedlock. One Syeda Khatija Nausheen was born on 09.11.2019, and thereafter, a male child Syed Mujtaba Abdul Nasir was born on 07.12.2020. However, unfortunately, the mother of the two children i.e. the wife of the respondent and daughter of the present appellants died on 06.06.2021 because of a disease known as (Lymphangioleio-myomatosis) (LAM) (lungs infection). When the mother died, the second child was approximately 6 months old and the elder daughter was approximately 1½ years of age. At that point of time, it was the appellants who took custody of these two children and it is they who are bringing up the children with care and protection. However, the respondent i.e. the son-in-law of the two appellants herein filed O.P. under Section 7, 10 and 25 of the Guardian and Wards Act, 1890 seeking for custody of the afore mentioned two minor children. It is this petition which stands allowed by the Family Court with the visitation rights granted in favour of the appellants herein on every Sunday between 9:00 AM to 6:00 PM and with fifteen days of custody during the summer vacation every year till the children attain the age of majority.

6. When the respondent had filed a petition seeking for custody, the appellants who are grandparents of the minor children filed another petition under the same provisions of the Guardians and Wards Act they in turn claiming the guardianship and custody of the minor children. It is this petition which has got rejected except for visitation rights mentioned above.

7. Learned counsel for the appellants referring to Section 352 of the Mahomedan Law which deals with the right of the mother of infant children and also Section 353 which governing the principles of child custody, particularly in the context of female relationship in default of mother, the maternal grandparents have the legal right to have custody of the two minor children and