Bombay High Court

Khalida @ Saniya Ismile Quadri vs Ismile Akmalpasha Quadri on 21 July, 2025

2025:BHC-AUG:18941                      1                   62.FA No.348-2024.doc



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                        FIRST APPEAL NO.348 OF 2024
                                  WITH
                     CIVIL APPLICATION NO.1183 OF 2024
                                  WITH
                     CIVIL APPLICATION NO.5709 OF 2025
                                  WITH
                     CONTEMPT PETITION NO.715 OF 2024

         1]    Sau Khalida @ Saniya Ismile Quadri
               Age-29 years, Occupation-Business and H.H.
               R/o.C/o. House No.2-5/89
               Residential House of Naser Mohd.
               Khasiyoddin, Hara Tajiya, Pansal Talhim,
               Near Fateh Jaman, Bidir,Tq.And
               District Bidar (Karnataka)-585401                 ..Appellant


                                    VERSUS

         1]    Ismile S/o Akmalpasha Quadri
               Age-41 years, Occupation-Labour,
               R/o.Peerpasha Dargah, Nilanga,
               Tq.Nilanga,Dist.Latur.                            ...Respondent

                                      *****
                    Advocate for Appellant: Mr. Mahesh P.Kale
     Advocate for the Respondent : Mrs.Madhaveshwari Mhase i/by Lex Aquila
                                     ******
                                    CORAM : SHAILESH P. BRAHME, J.

                            RESERVED ON : 30th JUNE 2025

                          PRONOUNCED ON : 21st JULY 2025
                            2                    62.FA No.348-2024.doc



JUDGMENT :

1. Heard both sides finally at the admission stage with their

consent.

2. Appellant/wife has taken exception to the judgment and order

dated 18.12.2023 passed by Learned District Judge, Nilanga in Civil

M.A No.1 of 2021 thereby granting custody of minor son/Akib to

respondent/husband, reserving visitation right of the appellant.

3. During pendency of appeal by way of interim order handing

over of custody was stayed vide order dated 12.03.2024. The

respondent was granted visitation right on every sunday vide order

dated 19.06.2024. Due to practical difficulties, the order was

modified on 25.06.2024. By further order dated 24.10.2024, the

handing over of temporary custody was directed to be before

Registrar (District Superintendent,Bidar). Despite above orders,

appellant neither handed over temporary custody to the respondent

nor could he exercise visitation right. Though parties were directed

to remain present before court, the appellant was not present on

20.03.2024.

4. Contempt Petition No.715 of 2024 is filed for taking action

against the appellant for defiance of the interim orders of High

Court. By order dated 21.11.2024 matter was adjourned. Appellant

was again directed to produce the child before the Court on the next

date. She was absent on 05.12.2024. The notice of contempt in a

prescribed format was issued to the appellant. In this manner,

custody of the minor/Akib remained with the appellant till this date.

By my previous order dated 16.06.2025, child was directed to be

produced on 30.06.2025. Again on the ground of illness of the

appellant, she and her son abstained from remaining present.

5. On 14.07.2025, Learned counsel for the appellant tendered on

record affidavit disclosing illness of the appellant which prevented

her from attending the Court on 30.06.2025. I interacted with the

minor in the chamber on 14.07.2025. He showed his disinclination to

stay with his father/respondent. The merits of the matter and legal

position need to be examined independently.

6. Appellant and respondent were married on 31.10.2010. Akib

is born on 27.10.2015. He is of 9 years and 9 months old. Appellant

has withdrawn from the company of the respondent since

10.06.2020. She is staying at her parent's place at Bidar with minor

son. Respondent is residing at Tq.Nilanga,Dist.Latur. Respondent

filed Civil M.A No.1 of 2021 under Section 7 of The Guardians and

Wards Act,1890 (hereinafter referred to as 'Act' for the sake of

brevity and convenience) before Learned District Judge, Tq.Nilanga

praying for custody of Akib and declaration of his guardianship over

Akib.

7. It is contended in the application that appellant had caused

harassment to the respondent and she was not interested in co-

habitation. She had a paramour. She left his company on 10.06.2020

alongwith her son. It is contended that in all seven members of the

family of the appellant were residing in the room. No proper care

was taken about health and education of a child. Respondent was

ready to provide all comforts to the child. Hence, for seeking custody

and declaration, application was filed.

8. Appellant contested the application by stating that she was

being ill treated on count of dowry. She was running a clothes

business and she was providing every care to Akib for his health

and education. It would be harmful to handover the custody to

respondent.

9. Appellant examined three witnesses. Respondent examined

himself. During the course of hearing, presiding officer interacted

with child on 06.07.2023. Considering submissions of the parties,

application of the respondent was allowed.

10. Learned counsel Mr.Kale for the appellant submits that

welfare of the child is a paramount consideration and in view of

Section 17 of the Act, impugned order is patently illegal. It is

submitted that in the interaction dated 06.07.2023, child refused to

go with father. Despite that impugned order was passed. It is

submitted that respondent has no fixed source of income as against

appellant who runs a business of clothes.

11. It is further submitted that impugned judgment and order is

based on assumptions and surmises. There is no concrete evidence

to make out a case for custody of a child. It is contended that

considering Bidar is a district place and the school in which he is

admitted, he needs to be retained in the custody of the appellant.

My attention is adverted to the documents produced on record by

the appellant by way of affidavit-in-reply. It is submitted that

appellant's business has been registered. Appellant has resorted to

the proceedings of maintenance against the respondent.

12. Per contra, Learned counsel Ms.Mhase would canvass the

following submissions :

a) Recourse to personal law is imperative from reading of Section 6

and Section 17(2) of the Act. A commentary of author Dr.Tahir

Mahmood in book of 'The Muslim law of India' is pressed into

service for topic of "Guardianship and custody of minor under

personal law"

b) Father is the natural guardian and entitled to custody after 7

years.

c) The pleadings and the evidence of the appellant shows her

falsehood and inconsistencies in respect of son, income and place of

business. The document of Udyam registration certificate is stated

to be afterthought.

d) Appellant has taken inconsistent stand and claiming

maintenance under D.V.A proceedings.

e) No reliance can be placed on the so called interaction of the trial

court.

f) Conduct of the appellant is objectionable. She has defied orders of

this Court and facing contempt proceedings.

g) Appellant's brother is seen with deadly sharp weapon on the

social media.

13. Both the parties have produced documents on record in the

appeal which were not part of record of trial court. They did not

raise serious objection for production of documents previously and

during the course of hearing. Even they relied upon the documents

to corroborate their submissions. Impliedly the documents relied by

them can be taken into consideration and they have no serious

objections for the same.

14. During the pendency of present appeal, various interim orders

are passed for handing over temporary custody to the respondent

but under one pretext or the other those have not been complied

with. Respondent has preferred Contempt Petition No.715 of 2024

for the defiance of interim orders of this Court. On 05.12.2024, a

notice of contempt in prescribed format has been issued to the

appellant. 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.

15. Parties are Muslims. They are governed by uncodified Muslim

Law. Respondent filed application for appointment of guardianship

and custody of the minor under Section 7 of the Act. It is apposite to

refer Section 17 of of The Guardians and Wards Act, 1890.

17. Matters to be considered by the Court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age,sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) [****] (5) The Court shall not appoint or declare any person to be a guardian against his will.

16. It is imperative for the Court to have due regard to age, sex

and religion of the minor while deciding his welfare under Section

17(2) of Act. Learned counsel for the respondent Ms.Mhase has

referred to Section 6 which is as follows :

6. Saving of power to appoint in other cases.--In the case of a minor,

nothing in this Act shall be construed to take away or derogate from

any power to appoint a guardian of his person or property, or both,

which is valid by the law to which the minor is subject.

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. There is a substance that

Muslim law needs to be considered.

18. My attention is adverted to commentary authored by Dr.Tahir

Mahmood in book of 'The Muslim law of India'. The book is also

tendered across the bar for ready reference besides photocopies of

the relevant extracts. Chapter-9 of the book pertains to law relating

to 'Children and parents'. It's part-C is about 'Minority and

guardianship'. Under Muslim law as per classification of

guardianship provided by clause (IV), wilayat-e-tarbiyat means

physical custody and upbringing is hizanat. The overall surveillance

over the person of the minor is wilayat-e-nafs. Following is the

relevant description of the terminologies :

2. Wilayat-e-tarbiyat is also popularly known as hizanat. There is no word in English which can convey in full the sense of hizanat.

Sometimes it is described as 'custody', but hizanat is not merely the physical possession of the minor, it also includes the upbringing (parvarish) of the minor.

Wilayat-e-nafs is what is known in English as 'guardianship of person. It includes all kinds of parental surveillance over the activities of the minor. Specifically, it includes:

(a) the power to take all important decisions (other than those relating to marriage and property) on behalf of the minor; and

(b) the obligation to maintain the minor and fulfill all genuine needs and requirements of the minor.

19. It is further stated that guardianship of a person in relation to

a child vests primarily to it's father. The concept of hizanat and

wilayat-e-nafs 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. Following

relevant extract is useful to refer :

3. There seems to be some confusion in India regarding the relative positions of hizanat and waliyat-e-nafs (i.e., guardianship of person).

Some authors have said that hizanat itself is guardianship of person; some others have found it difficult to theoretically differentiate between the two consistently with the rules regulating their incidents.

The true position seems to be that Muslim law splits guardianship of person into two facets. One of these consists of the physical custody and day-to-day upbringing of the minor and this is called hizanat. All other aspects relating to the person of the minor are outside the scope of hizanat; they belong to the waliyat-e-nafs. These two facets of guardianship of person begin to run at the same time (i.e., when the child takes birth); and they also end at the same time (i.e., when its minority legally terminates). But, while wilayat-e-nafs is from the beginning till the end held primarily by the child's father, it is not so with hizanat, 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 (fixed by the law) or reaches a particular stage in life (also fixed by the law). 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 (guardian). When hizanat, too, is held by the father, he is simultaneously the wali and the hazin of the child.

Thus, the guardianship of person in relation to a child belongs, primarily, to its father; the mother's being only a pre-emptive right to keep the father away, for a legally prescribed period only, from a particular aspect of guardianship of person, namely, the custody and physical upbringing of the child. However, when one parent is holding the hizanat of a child, the other cannot be denied access to it.

20. Following part of the Chapter throws light on the duration or

the status of hizanat.

VI. Guardianship of Person :

1. For the purposes of hizanat, Muslim law divides the duration of minority

in respect of every male minor into two stages (marahil). The limits of these

stages are different from school to school. The following chart shows these

'stages under some schools :

Sr.No. school    first stage                         second stage
(i)     Hanfi    since the birth of the child till   since the completion of seven
        law      he completes the age of             years till the termination of
                 seven years.                        minority.
(ii)    Ithna    since his birth till he             since the completion of the
        Ashari   completes the second year           second year till the
        law      of his age.                         termination of minority.

2. During the first stage, the hizanat of the minor belongs to his mother;at

the commencement of the second stage it passes on to his father.

21. Thus, it can be construed from the commentary on the

personal law that hizanat of the minor to his mother continues upto

7 years and thereafter it passes on to his father. The commentary of

the author referred above is relevant because in the case at hand

age of the minor is 9 years and 9 months. Appellant's hizanat stands

terminated after completion of age of 7 years and gets transferred to

the respondent. If appellant has deprived the respondent from the

right of hizanat, by implication of Section 6 and Section 17(2) of the

Act, respondent is entitled to maintain the petition. The submission

of learned counsel Ms.Mhase that personal law entitles the

respondent to claim custody, has substance.

22. My attention is adverted to the deposition of the appellant. It

was stated that initially Akib was admitted in 'Embassy public

school' up to 2020 and thereafter he was admitted to 'Royal Raina

Public School'. In her cross-examination she admitted that above

referred contention is incorrect. The receipts produced by the

appellant alongwith additional affidavit are of depositing the fees

with 'Embassy public school' from 21.01.2021 to 06.06.2024. She is

not sure about the school of the minor.

23. In her affidavit appellant deposed that Akib clothes center

was started in the year 2018 at Nilanga and she was getting income

of Rs.10000/- from the said business. It is not made clear that as to

how she is running business in a shop at Tq.Nilanga District Latur

by staying at Bidar (Karnataka). The deposition of her father shows

that appellant was not earning Rs.10000/- from the clothes business.

24. I have gone through Udyam registration certificate which

appears to have been generated on 18.07.2024. It was not produced

before the Court below. This certificate would not enure to the

benefit of the appellant, as in all probabilities it is secured

afterthought. Learned counsel for the respondent has referred to

maintenance proceedings initiated by the appellant claiming

maintenance from the respondent by showing his income as

Rs.25000/- per month. In the present proceedings, it would not be

possible to comment upon the same.

25. Learned counsel for the respondent forcibly and successfully

pointed out the inconsistencies in the evidence of the appellant

which I have recorded in above paragraphs. Minor appears to be

extremely attached to the appellant. Minor is of 9 years old and for

few years further he needs appellant's protection and care

physically. Respondent does not come with a positive case of his

source of income except his plea of labour work and pension of his

father. I am of the considered view that the deficiencies or lapses on

the part of appellant is not sufficient enough to disentitle her to

retain the custody of the minor.

26. I had an interaction exclusively with the minor on 14.07.2025.

I found from various questions put to him, that he is intelligent and

precious child. I also found that the bonding of the minor with the

appellant is greater. He has flatly refused to go with the respondent.

Under these circumstances, when personal law and codified law tilt

in favour of the respondent, the judgment cited by learned counsel

for the appellant would assist me in arriving at the conclusion.

27. Learned counsel for the appellant relied on the judgment of

the Supreme Court in the matter of Gaurav Nagpal vs. Sumedh

Nagpal reported in (2009) 1 SCC 42, that was a matter of custody of

minor under 'The Hindu Minority And Guardianship Act, 1956'. In

that case child was staying with father and mother was seeking

custody. Her application was allowed by the District Court. Being

aggrieved he preferred appeal in the High Court, but it was

dismissed. Thereafter, he approached the Supreme Court but he

was unsuccessful. Reliance is placed on paragraph Nos.40 and 47 to

51 of the judgment. It is relevant to quote following paragraphs :

"49. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu [1984]3 SCC698,this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw (1987) 1 SCC 42; Chandrakala Menon (Mrs.)v.VipinMenon(Capt), (1993)2SCC6 .

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues.

The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the Court has to due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

51. The word 'welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising

its parens patriae jurisdiction arising in such cases."

28. In the present case also appellant 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 respondent, considering minor's ordinary

contentment, health and favourable surroundings, this Court is

inclined to decide in favour of the appellant. When the personal law

is pitted with comfort and welfare of the child, latter would have

upper hand. I am fortified in my view by latest rendition of the

Supreme Court in the matter of Neethu vs. Rajesh Kumar

reported in MANU/SC/0920/2025. In that case mother was denied

custody by the High Court. Mother filed a Review Petition which

was allowed by the Supreme Court. In that case minor was found to

have been in deteriorating mental health. Following is the relevant

paragraph :

"34. The stability and security of the child is an essential ingredient for the full development of the child's talent and personality. Even most of the well grown adults do not perceive sudden and huge changes in their lives very comfortably and often exhibit symptoms of distress when confronted with such an imminent change to their regular life. It would be extremely harsh and insensitive for the courts of law to expect the child to accept and flourish in an alien household where his own biological father is akin to a stranger to him. 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."

29. Reliance is also placed on the judgment of the Supreme

Court in the matter of Gayatri Bajaj vs. Jiten Bhalla reported in

(2012) 12 SCC 478. In that case interaction was conducted by the

Supreme Court with minor children who were staying with father.

Following paragraph is relevant :

"6. In the aforesaid facts and circumstances, we feel that if the children are forcibly taken away from the father and handed over to the mother, undoubtedly, it will affect their mental condition and it will not be desirable in the interest of their betterment and studies. In such a situation, the better course would be that the mother should first be allowed to make initial contact with the children, build up relationship with them and gradually restore her position as their mother."

. In view of the above principles, I find that a minor in the

case at hand would be more comfortable and safe with his mother/

appellant.

30. Learned counsel Mr.Mhase for the respondent relied on the

judgment of Delhi High Court in the matter of Smt.Akhtar Begum

vs. Jamshed Munir reported in AIR 1979 Delhi 67 and taken me

through paragraph Nos.12 and 15. The principles are based upon

the concept of personal law. The judgment can be of no avail to the

respondent. The judgment cited above by the appellant need to be

preferred.

31. I find that Learned District Judge did not take into account

the ratio laid down by Apex Court in the judgments cited above.

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. I, therefore pass

following order :

ORDER

A) First Appeal is allowed.

B) The Judgment and order dated 18.12.2023

passed by District Judge, Tq. Nilanga, District

Latur in Civil M.A.No.1 of 2021 is quashed and set-

aside.

C) The respondent shall have visitation right and

the temporary custody on following terms :

i) During long holidays/vacations covering more than two weeks the child will be allowed to be in the company of the father for a period of seven

days.

ii) The period shall be fixed by the father after due intimation to the mother who shall permit the child to go with the father for the aforesaid period.

iii) For once in a month preferably on Sunday or on festival day, appellant shall allow the child to meet the respondent at Bidar District Bidar (Karnataka). The handing over and restoration of the custody shall be in the presence of Superintendent, District Court, Bidar or competent officer appointed by him.