The appellant wife has preferred this appeal under Section 47 of the Guardian and Wards Act, 1890 against the order dated 11.10.2010 passed by the Additional District Judge, allowing the application of the respondent husband for the custody of their minor son Samad Khan @ Mohd. Shariq.
On the appearance of the parties, the court vide order dated 31.1.2010 had referred the matter to the Mediation Center attached to the High Court for possible reconciliation as it involved the custody of a minor child. Several dates were fixed for the purposes of mediation between the parties but ultimately the mediation failed and a report of this effect was submitted on 7.4.2011.
On the failure of mediation, the appeal has been listed for final disposal as necessary pleadings have been exchanged between the parties.
I have heard Sri Sumit Goyal, learned counsel for the appellant and Sri Wajid Ali, learned counsel for the respondent, both of whom agreed for the final disposal of the appeal.
The only submission of the learned counsel for the appellant is that welfare of the minor is the paramount consideration and in view of the willingness expressed by the minor before the court to reside with his mother, the court below was not justified in directing to give custody of the minor to the respondent husband.
Learned counsel for the respondent on the other hand submitted that in view of the settled principles of Muslim law father alone is entitled to act as guardian of a minor aged above 7 years. Thus, the court below has not committed any illegality in allowing his application for the custody of the minor.
There is no dispute that parties are muslim by religion. They were married 9 years before the initiation of the present proceedings i.e. some time in the year 1999 and that the minor in question was born out of the said wedlock. At the time of filing of the application under Section 25 of the Act by the respondent husband, he was living with his mother.
The respondent had alleged that the aforesaid minor is now over 7 years of age. He has divorced the appellant on 16.10.03. She has thereafter remarried and has ceased to have any right of custody of the minor. The appellant denied the divorce and her remarriage. She further alleged that she is taking good care of the minor and his education.
It is accepted to the parties that the minor was born on 24.1.01 and as such is aged about 10 years as on date. He had appeared before the court and has expressed his willingness to live with her mother, who is taking his due care and that of his education.
Chapter XVIII of the Principles of Mohamedan law by Mulla deals with appointment of guardians and the right of the mother to the custody of minors.
Section 351 of the Principles of Mohamedan law is pari materia with Section 17 of the Act and provides that in appointing guardian the court shall consider the welfare of the minor and be guided by the law to which the minor is subject.
In addition to the above provision, Section 352 of the Principles of Mohamedan law by Mulla provides that mother is entitle to the custody of her male child until he completes the age of 7 years and the said right continues even if she is divorced by the father of the minor unless she marries a second husband in which case the custody would belong to the father. In other words, it provides that the mother of a minor male child under the Mohamedan law is entitle to his custody till he attains the age of 7 years that to if she has not remarried. It means that the mother is not entitle to custody of a minor male child above 7 years of age or that custody of a minor male child above 7 years is not to be given to the mother In Immambandi and others Vs. Mutsaddi and others (1917-1918) 45 IA 73 their Lordships of the privy council said "It is perfectly clear that under the Mohamedan law the mother is entitled only to the custody of the person of her minor child upto a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni Law) is the legal guardian." It would thus appear that father is the primary and the natural guardian of his minor child and that the right of the custody of mother is only upto a certain age of the minor i.e. 7 years in the case of male child and till the attainment of puberty in the case of female child.
In Mt. Ulfat Bibi Vs. Bafati AIR 1927, Alld. 581 a division Bench of this court laid down that under the Mohamedan law father is the natural guardian of his minor boy but side by side with the right of the father as lawful guardian exists the recognized right of the mother to have the custody of the child upto the age of seven years. Thus, the right of the mother to have custody of her minor son is limited upto 7 years of his age under the Mohamedan law.
In case at hand, the minor is a male child aged above 7 years and therefore, as per the Mohamedan law the father is the natural guardian and is entitled to his custody.
The court below in view of the compromise dated 16.10.09 allegedly between the appellant and the respondent accepted the version of the respondent that there is a divorce between the two.
The court below further found that the name of the appellant appears in the family register as the wife of one Mehboob and on its basis inferred that the appellant has remarried.
The aforesaid findings are not acceptable to the appellant but in the absence of any positive evidence to prove otherwise, this court is at a loss to interfere with the same.
In view of the aforesaid facts and circumstances, under the Muslim law, the father being the natural guardian is entitled to the custody of the minor in question and the mother stand ousted from getting the custody particularly in view of her remarriage. However, the personal law of the parties is merely a guiding factor in deciding the custody of the minor as is evident from the plain reading of Section 17 of the Act as well as Section 351 of the principles of Mohamedan law.
Section 7 read with Section 17 of the Act mandates the court to consider the welfare of the minor and to be guided by the law to which the minor is subject in appointing a guardian of a minor. The Supreme Court in JT 1993(1) SC 229 Ms. Chandra Lekha and another Vs. Capt. Vipul Menor and another has laid down that the question regarding custody of minor cannot be decided on the basis of the legal rights of the parties but on the sole and pre-dominant criteria of what would best serve the interest and welfare of the minor.
In Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka AIR 1982 SC 1276, the Apex Court laid down that the principle of law in relation to the custody of a minor is well established and well settled and that the matter has to be considered and decided from the point of view of the welfare and interest of the child and it is the duty of the court to protect the interest of the minor.
Similarly in Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and another AIR 1987 SC 3 it was held that in deciding about the custody of the minor, interest and welfare of the minor is the predominant criteria and legal rights of the parties may not come in way.
In M.K. Hari Govindan Vs. A.R. Rajaram AIR 2003 Madras 315 the dispute was regarding the custody of a female child aged about 10 years between the maternal and parental grandfathers, both the parents of the child having died in an accident, the child having expressed willingness to live with the respondent with whom she had been living since 1998, the court in view of willingness expressed by the child and the fact of her living with the respondent for over 4 years held that the interest and welfare of the minor child would be with the respondent and it is not proper to change the custody of the child.
In Rosy Jacob vs. Jacob A. Chakramakkal AIR 1973 SC 2090 there lordships of the Supreme Court observed that where there is dispute between mother and father regarding custody of a minor the court is expected to strike a just and proper balance between requirement of the welfare of the minor and rights of the parents over the minor child. In striking such a balance it may be kept in mind that there is really no substitute for the mother's love, affection and care for her infant which the infant is most unlikely to get if its custody is entrusted to the father and therefore, in such cases the court should lean in favour of the mother in matter of custody of the minor rather than in favour of the father. The controlling factor is the welfare of the child and not the right of the parents.
In view of the above the personal laws of the parties or the legal rights are only a guiding factor for determination of the custody of a minor but such rights would not prevail over the interest and welfare of the minor which is the primary and the predominant criteria for deciding about the person with whom the custody of the minor would lie.
The legal position which emerges from the above discussion can be summarized as under:-
(i) In Muslim law father is the primary and the natural legal guardian of his minor child though mother is entitled to custody upto certain age and her right to custody is not affected even if she is divorced but comes to an end on her remarriage;
(ii) The welfare and the interest of the minor is the predominant criteria in deciding about the custody of the child;
(iii) The personal rights of the parents are only the guiding factors and would not override the interest and welfare of the minor;
(iv)The personal wishes of the child of an understandable age carries weight; and
(v)The courts should avoid and be slow in disturbing the prevailing system in striking the balance between the interest of the minor vis-a-vis the rights of the parties/parents.
In the instant case, the minor who is now aged about 10 years ever since his birth is living with her mother who is taking good care of him though father may take still better care, coupled with the fact that he has appeared before the court and has clearly expressed his willingness to live her mother, I am of the view that the interest and welfare of the child is with the mother.
In such circumstances when the interest and welfare of the minor is with the mother the personal rights under the Muslim law which are only the guiding factors in the matter of custody of a minor would not override the interest of the minor.
The court below as such committed an error in allowing the application and granting custody of the minor to the father primarily in view of the legal right of the father under the Muslim law. The court in passing the impugned order completely ignored the wishes of the child, his long stay with the mother and his welfare and at the same time was swayed away by the legal rights of the parties. Such an approach on part of the court below cannot be approved of and is rather strange and against the settled principle.
In view of above, the appeal is allowed. The order of the court below dated 11.10.2010 passed by the Additional District Judge is set aside but with no costs.
Order date:-24.11.2011 piyush