Justice Shailesh Brahme, Bombay High Court
When Personal Law Is Pitted Against Child’s Welfare, Latter Has Upper Hand: Bombay High Court Grants Custody To Mother
|A 9-year-old boy’s custody was contested between his mother and father, with the Family Court earlier directing custody to the father.
The Bombay High Court held that the welfare and comfort of a child must take precedence over personal laws, even in custody matters governed by religious doctrines.
A Bench of Justice Shailesh Brahme held, "In the present case, the mother has flouted interim orders passed by this Court. But that will not disentitle her to retain custody of the child. On the legalistic basis though merits of the matter tilt in the favour of the father, considering minor's ordinary contentment, health and favourable surroundings, this Court is inclined to decide in favour of the mother. When the personal law is pitted with comfort and welfare of the child, latter would have upper hand."
Advocate Mahesh P.Kale appeared for the petitioner and Advocate Madhaveshwari Mhase appeared for the Respondent.
As per Muslim Personal Law, once a child crosses the age of seven, custody is typically granted to the father. However, the Court noted that after personally interacting with the child, it became clear that he shared a stronger emotional connection and bond with his mother. This, coupled with the overall well-being and contentment of the child, led the court to rule in favor of the mother retaining custody, despite the father's legal claim.
The Court acknowledged that the mother had previously violated interim court orders. However, it emphasized that such non-compliance should not automatically disqualify her from having custody if it is ultimately in the best interest of the child. Justice Brahme observed that although the legal merits might favor the father, the court was duty-bound to prioritize the child's emotional and physical well-being. Referring to various precedents set by the Supreme Court, the judge reiterated that in situations where personal laws conflict with the best interests of a minor, the latter must take precedence.
The Court referred to the authoritative text The Muslim Law of India by Dr. Tahir Mahmood, particularly the chapter discussing the concepts of guardianship (wilayat-e-nafs) and custody (hizanat) under Muslim law. The Court said, "It is stated that guardianship of a person in relation to a child vests primarily to its father. The concept of hizanat (custody) and wilayat-e-nafs (guardianship) are distinct. The physical custody and day-to-day upbringing is the hizanat. All other aspects than hizanat would fall in wilayat-e-nafs. It is specifically provided that primarily hizanat of a minor is with mother up to particular age. After reaching that age, custody of a mother, who is hazina is taken away and vested with father who is called as wali and hazin of the child."
The Family Court had earlier ruled that custody should be handed over to the father. However, the High Court criticized this decision, stating that it lacked a "humanistic approach." The High Court noted, "There is want of humanistic approach. I do not find that interest of the minor is better secured by handing his custody to the respondent. It is overlooked that respondent did not adduced the evidence to show that he has better financial capabilities. There is no female member in his family. While exercising parens patriae jurisdiction, the wish of the minor as well as attending circumstances need to be considered. In that view of the matter impugned judgment and order is unsustainable."
The Court emphasized that when courts exercise their parens patriae jurisdiction (acting as the guardian of the minor), the child’s own preferences and the broader circumstances must be thoroughly evaluated. Consequently, the High Court found the Family Court's ruling to be flawed and unsustainable.
With these findings, the High Court allowed the mother's appeal and overturned the Family Court's judgment.
Cause Title: Sau Khalida v. Ismile, [2025:BHC-AUG:18941]