Welfare of the child is paramount in custody disputes, superseding traditional guardianship rights.

1This appeal arises out of the order passed in LA. No.483 of 2004 granting custody of the minor child aged 4 years to the father in preference to the maternal grandmother.

2 Senior Counsel appearing for the maternal grandmother Sri. K.C. John submitted that the order passed by the Court below is in violation of S.352 and 353 of the Mulla's Principles of Mahomedan Law with regard to guardianship. Counsel appearing for the respondent father Smt. Molly Jacob on the other hand contended that the above mentioned provisions would give way to the provisions of the Guardians and Wards Act with regard to the welfare of the child. Father of the child filed O.P. before the Family Court, Manjeri for custody of his minor son who was in the custody of the maternal grand parents. Mother of the child had committed suicide and after her death child was brought up by the maternal grandparents. Father had filed an application for the custody of the child which was earlier allowed by the Family Court. Matter was taken up before this Court by the maternal grand parents by filing M.F.A. No. 847 of 2002 before this Court. This Court modified the order and father was only permitted to have visitation rights to take the child occasionally during festival sessions as well as on holidays. While holding so, this Court held as follows:
"The child is, since the death of its mother, living with the maternal grand parents. If a transplantation is made at this age of the child, it will badly affect the child especially when the father has remarried and a child is born to him in the new marriage. He had already been allowed, as per the interim order, to have visits at his choice, at the house of the appellant. That is being continued. In such circumstances, he can surely win over the affection of the child in due course and the child will also be aware in due course of the fact that its betterment will always be in the hands of the respondent."
Later maternal grandfather died. Father then preferred I.A. No.483 of 2004 for custody of the child. Change of circumstances were brought before the Family Court for seeking custody of the minor son. It was pointed out that on the death of the maternal grandfather grandmother alone would not be able to look after the child and for the welfare of the child it is necessary that the child be put in the custody of the father. Family Court on evidence found that for the welfare of the child it is necessary that the child be in the custody of the father. Petition was allowed giving custody of the child to the father. Right of the mother for custody of the infant children is dealt with under the Mahomedan Law.

3 S.352 of the Mahomedan Law states as follows:
"352. Right of mother to custody of infant children.-- The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f)."
S.353 is also relevant and the same is extracted below.
353. Right to female relations in default of mother.-- Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:-
1) mother's mother, how highsoever;
2) father's mother, how highsoever;
3) full sister;
4) uterine sister;
5) consanguine sister;
6) full sister's daughter;
7) uterine sister's daughter;
8) consanguine sister's daughter;
9) maternal aunt, in like order as sisters; and
10) paternal aunt, also in like order as sisters.
S.353 would indicate that in default of mother as per the Personal Law of Muslims, child has to be in the custody of the mother's mother and then father's mother, how highsoever. Father is not included in S.353. Contention was raised that on the basis of the abo