Custody Of Minor Children Primarily Belongs To The Mother Under Muslim Personal Law: J&K And Ladakh High Court
The High Court held that the mother’s right to custody continues unless she is found disqualified on legally recognised grounds, while also emphasising the paramount importance of the welfare of minors in custody disputes.
Justice Javed Iqbal Wani. Jammu and Kashmir & Ladakh High Court
The Jammu and Kashmir and Ladakh High Court has ruled that under Muslim Personal Law, the custody of minor children primarily vests with the mother, unless she is disqualified on legally recognised grounds, adding that the said right continues until disqualification is established.
The Court was hearing an appeal against an order of Additional District Judge Srinagar, which had directed the mother to hand over custody of her two minor children to their father.
A Single Judge Bench of Justice Javed Iqbal Wani, while delivering the judgment, held that “in Muslim Personal Law first and foremost custody of the minor belongs to the mother and she cannot be deprived of that right so long as she is not found guilty of misconduct or disqualified on legally recognized grounds and said right of mother of custody continues unless such disqualification is established.”
Senior Advocate A.H. Naik represented the appellant–mother, while Senior Advocate Altaf Haqani represented the respondent–father.
Background
The dispute arose out of a matrimonial conflict between the parties, culminating in divorce and the respondent–father’s conviction for assaulting the appellant by a Qatari court. Custody proceedings in Qatar resulted in an order granting custody of the children to the appellant–mother, while allowing visitation rights to the father.
After the appellant-mother moved to India with the children, in defiance of the court ruling in Qatar, the respondent-father sought custody before the High Court of Jammu & Kashmir and Ladakh. While a Single Judge dismissed his petition, a Division Bench permitted him to approach the competent court.
He then filed custody proceedings before the Additional District Judge Srinagar, who ordered interim custody to the father, prompting the appellant to challenge the order in the High Court.
Court’s Observations
On Custody Laws & Constitutional Principles
At the outset, the Court elaborated on the broader legal framework governing custody matters in India. While deliberating on the interplay between the Guardian and Wards Act, 1980 and the Muslim Personal Laws, the court observed that “the Act of 1890 by its very nature and concept is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the Courts give consideration to the Personal Laws of the parties as well, thus suggesting that the Act of 1890 and Personal Laws occupying the field are complementary and not in conflict to each other signifying that the Courts in India are obliged to read both laws together in a harmonious way.”
Furthermore, underscoring that Articles 39(f), 14 and 15 of the Constitution reinforce the State’s obligation to ensure children’s welfare, equality, and non-discrimination, the Court held that neither parent could claim preference, and that the child’s welfare must be the decisive factor in deciding such matters.
On Custody and Guardianship Under Muslim Personal Law
The Court took note of the submissions made by the respondent’s counsel, who relied heavily on the concept of Hizanat under Islamic jurisprudence to defend the impugned order. It was argued that the mother’s right of custody of a minor under the said concept of Hizanat extends only up to the age of 2 years in case of a son and 7 years in case of a daughter, after which the custody of the minor mandatorily has to shift to the father, being the natural guardian.
Addressing this plea, the Court clarified the distinction between custody and guardianship, holding that “custody or Hizanat in Islamic terminology refers to actual care, upbringing and day to day supervision of the child and guardianship known as Wilayat is of wider scope and extends to authority over the person and property of the minor and while the father is regarded under Muslim law as the natural guardian, custody is treated not as the entitlement of either parent, but as a right of the child to receive care in the most natural, secure, and nurturing environment.”
The Court reiterated that in Muslim Personal Law, first and foremost, custody of the minor belongs to the mother and she cannot be deprived of that right so long as she is not disqualified on legally recognised grounds.
Upon discussing the varying views of different schools of Islamic jurisprudence, the Court held that “Islamic jurisprudence while affirming the father’s guardianship, nonetheless accords the mother’s priority in custody during the formative years of a child, recognizing her unique ability to provide maternal affection, comfort and early nurturing.”
On the Merits of the Case at Hand
The Court reiterated the principle that custody should not ordinarily be disturbed from the parent with whom the minors are already residing, unless compelling and exceptional circumstances demand otherwise.
Examining the facts, the Court noted that the minors had been living with the appellant–mother in Kashmir since 2022. Transferring custody to the respondent, who intended to take them to Qatar, would remove the matter from the Court’s supervisory jurisdiction and disrupt the settled environment of the children.
The Bench found that the welfare of the children clearly lay in their continued custody with the mother, while at the same time acknowledging the father’s affection and his keen desire to have exclusive custody.
Conclusion
Setting aside the impugned order, the High Court directed that in order to provide the respondent–father fair and reasonable access to the children, he shall be entitled to interim custody whenever he visits Srinagar, subject to a maximum of five days and on special occasions such as Eid, provided that the arrangement does not affect the children’s comfort or education.
Allowing the appeal, the Court set aside the impugned order passed by the 4th Additional District Judge, Srinagar, while leaving liberty to the parties to approach the competent court for further orders if circumstances change.
The appeal was accordingly disposed of along with all connected applications.
Cause Title: Sana Aftab v. Mohtashem Billah Malik (Neutral Citation: 2025:JKLHC-SGR:249)
Appearances
Appellant: Senior Advocate A.H. Naik, Advocate Shabir Ahmad Najar
Respondent: Senior Advocate Altaf Haqani, Advocate Asif Wani
