Safiya Malik

The Bombay High Court at Aurangabad, Single Bench of Justice Shailesh P. Brahme quashed the custody granted to the father of a minor son by the District Judge of Nilanga and allowed the appeal filed by the mother. The Court directed that the minor's custody be retained by the mother, while granting specific visitation rights to the father. It held that despite the father's claim to custody under Muslim personal law, the child's welfare and comfort must prevail over all other legal considerations.

The dispute pertained to the custody of a minor son born on 27 October 2015, now aged 9 years and 9 months. The parents, both governed by Muslim personal law, were married on 31 October 2010. The appellant/mother had withdrawn from the respondent/father's company on 10 June 2020 and was living with her son at her parental home in Bidar, Karnataka, while the respondent resided in Nilanga, Latur.

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The respondent filed Civil M.A No.1 of 2021 before the District Judge, Nilanga under Section 7 of the Guardians and Wards Act, 1890, seeking custody and declaration of guardianship. The trial court granted the relief, awarding custody to the father while reserving visitation rights to the mother.

The appellant challenged this order before the High Court in First Appeal No. 348 of 2024. During the pendency, interim relief was granted staying the transfer of custody. Various orders were passed to facilitate visitation, including directions for temporary custody transfer before the Registrar (District Superintendent, Bidar). However, the appellant did not comply, leading to the filing of Contempt Petition No. 715 of 2024 by the respondent.

According to the respondent's pleadings, the appellant had left the matrimonial home without just cause and was allegedly cohabiting with a paramour. He claimed the child was being raised in cramped conditions with insufficient care for his health and education. The respondent, in contrast, submitted he was willing and able to provide all comforts to the child.

The appellant contested the allegations and maintained she was running a clothing business and providing the child with proper care. She denied the allegations of ill-treatment or moral misconduct. Her defence cited dowry-related cruelty and referenced maintenance proceedings already initiated against the respondent. She supported her claim with documents, including an Udyam registration certificate for her business.

Both parties submitted additional documents before the High Court, not part of the trial court record. Neither party raised objections to their consideration. Despite interim orders, the appellant did not hand over the child to the respondent, and she failed to appear on multiple occasions, including 20 March 2024 and 5 December 2024. A contempt notice was subsequently issued.

Judicial interaction with the child occurred on 14 July 2025. The minor expressed reluctance to stay with his father. The Court recorded that the minor appeared intelligent and emotionally bonded with the mother.

The respondent relied on Section 6 and Section 17(2) of the Guardians and Wards Act, asserting the applicability of Muslim personal law, under which a father's right to custody revives once a son turns seven. To substantiate his position, he cited Dr. Tahir Mahmood's commentary in The Muslim Law of India, distinguishing between hizanat (physical custody) and wilayat-e-nafs (general guardianship).

"The law awards the hizanat of a minor, to begin with, primarily to its mother; it is taken away from her after the child attains a particular age... While the mother holding the hizanat of her child is known as hazina, the father who holds the guardianship of its person is known as the wali."

Applying this, the respondent argued that upon the child turning seven, the right to custody passed to the father.

The appellant challenged the trial court’s findings, stating that the welfare of the child must prevail under Section 17 of the Act. She pointed out discrepancies in the evidence regarding the child's schooling and her income. In her deposition, she initially claimed the child was enrolled in Royal Raina Public School post-2020, but later admitted the fees continued to be paid to Embassy Public School. Her father also contradicted her assertion about earning Rs.10,000 from the clothing business. The Udyam certificate was dated 18 July 2024, after the judgment, leading to its characterization by the Court as an "afterthought."

Justice Brahme noted, "There is a reason to infer that she is not ready to part with the custody and for that purpose she has audacity to flout the Court’s orders. Her conduct can be dealt with in contempt proceedings."

However, the Court added, "Minor appears to be extremely attached to the appellant... He has flatly refused to go with the respondent."

Discussing personal law, the Court stated, "It can be construed from the commentary on the personal law that hizanat of the minor to his mother continues up to 7 years and thereafter it passes on to his father." Yet, it held that personal law must be interpreted in the light of Section 17:

"The conjoint reading of Section 6 and Section 17(2) makes it obligatory to consider personal law applicable to the minor in the matter of guardianship and custody."

Citing the Supreme Court judgment in Gaurav Nagpal vs. Sumedha Nagpal (2009) 1 SCC 42, the Court recorded: "The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant... The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being."

The High Court also referred to Neethu vs. Rajesh Kumar MANU/SC/0920/2025, stating: "We cannot turn a blind eye to the trauma that is being inflicted on the child in consequences of the orders of the courts of law handing custody to the father, who is alleged to exhibit apathy towards the tender emotional state of the minor."

In conclusion, the High Court held: "When the personal law is pitted with comfort and welfare of the child, latter would have upper hand."

The First Appeal was allowed. The judgment and order dated 18 December 2023 passed by District Judge, Nilanga in Civil M.A No.1 of 2021 was quashed and set aside.

The respondent was granted visitation rights and temporary custody with the following directions:

The father may take temporary custody of the child during long holidays or vacations exceeding two weeks, limited to seven days, with due intimation to the mother. The mother shall permit the child to go with the father for the said period.

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Additionally, on one Sunday or festival day every month, the mother must permit the child to meet the respondent at Bidar, Karnataka. This meeting and the handing over of custody must take place before the Superintendent, District Court, Bidar, or a competent officer appointed by him.

The civil applications were disposed of. The contempt petition shall be dealt with independently.

Advocates Representing the Parties:

For the Appellant: Mr. Mahesh P. Kale, Advocate

For the Respondent: Mrs. Madhaveshwari Mhase, Advocate, instructed by Lex Aquila

Case Title: XXX v YYY

Neutral Citation: 2025: BHC-AUG:18941

Case Number: First Appeal No. 348 of 2024

Bench: Justice Shailesh P. Brahme