Karnataka High Court

Sri Riyaz vs Smt. Noorjan A on 7 July, 2022

Bench: K S Hemalekha

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                                               ®
    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 07TH DAY OF JULY 2022

                      BEFORE

       THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

    WRIT PETITION No.57676/2018 (GM-FC)

BETWEEN:

SRI.RIYAZ
S/O LATE APSAR
AGED ABOUT 33 YEARS
WORKING AT DEPARTMENT OF BESCOM
NO.7, 7TH CROSS, ESHWAR LAYOUT
INDIRANAGAR 2ND STAGE
BANGALORE - 560 038

AND ALSO AT

NO.220, D M KURKE
ARASIKERE TALUK
HASSAN DISTRICT - 573 103
                                       ...PETITIONER

(BY SRI NANDISH GOWDA G.B., ADVOCATE FOR
    SRI R.B.SADASIVAPPA, ADVOCATE)

AND:

SMT.NOORJAN A
D/O C ANWER JAN
AGED ABOUT 29 YEARS
RESIDING AT NO.90
K.N.RAMAIAH LAYOUT
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BEHIND AIYAPPA TEMPLE
K.R.PURAM, BANGALORE - 560 036
                                         ...RESPONDENT

(BY SRI RAVINDRANATH K, ADVOCATE FOR
    SRI S.V.SHASTRI, ADVOCATE FOR C/R)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER OF INTERIM CUSTODY DATED 13.12.2018
PASSED IN G & WC NO.149/2018 PENDING ON THE FILE OF
THE HON'BLE I ADDITIONAL FAMILY JUDGE, BENGALURU
VIDE ANNEXURE-A IN FIING THE SAME.

      THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                      ORDER

Welfare of the child would be paramount

consideration of the Court as it is the matter for

well being of the child.

2. The present petition is filed by the father

of the minor child R.Asadulla, who is the husband of

the respondent assailing the order dated

13.12.2018 on I.A. No.3 filed by the mother of the

minor under Section 12 of the Guardians and Wards

Act, 1890 (hereinafter referred to as 'the G & WC

Act, 1890' for short) in G and WC No.149/2018

pending on the file of I Additional Principal Judge,

Family Court, Bengaluru (hereinafter referred to as

'the Trial Court' for short) whereby the interim

custody of the minor child aged about four years

was directed to be handed over to the respondent-

mother herein.

3. The parties herein are referred to as

petitioner-father and respondent-mother for the

sake of convenience.

4. Heard the learned Counsel for the

petitioner-father and the learned Counsel for the

respondent-mother and perused the material on

records and also the impugned order of the Trial

Court.

5. The respondent-mother filed petition

under Section 10 and 7(a) of the G & WC Act, 1890

read with Section 7(g) of the Family Court Act,

1984 seeking to appoint herself as the guardian of

the minor. During the pendency of the petition, the

respondent-mother filed an application-I.A.No.3

seeking interim measure for the custody of the

minor child R.Asadulla. The petitioner-husband filed

objections contending that the respondent-mother

is disentitled for the custody of the minor child R.

Asadulla.

6. The learned trial Judge on appreciation

of the material on record held that the child is of

tender age which requires love, affection and care

of the mother, as such, reserving liberty of

visitation rights to the father, the custody of the

minor child was given to the respondent-mother

and accordingly I.A.No.3 was allowed and the

petitioner-husband was directed to hand over

interim custody of the minor child/Master

R.Asadulla.

7. Being unsatisfied with the order passed

by the I Additional Principal Judge, Family Court,

Bengaluru on I.A. No.3 in G &WC.No.149/2018

petitioner-father has preferred the present petition.

8. It is the contention of the learned

Counsel, Nandish Gowda G.B. appearing for

Sri. R.B. Sadashivappa representing the petitioner

that the parties are not governed by the Guardians

and Wards Act, 1890 but they are governed by the

Muslims Personal Law and contended that the

respondent-mother is not entitled for the custody of

the minor son as she is the divorced wife having

obtained Khulanama by mutual consent and as per

the provisions envisaged under the Mohammedan

Law and as such, sought to dismiss the application

filed by the respondent-mother and allow the

present petition.

9. Per contra the learned Counsel for the

respondent-mother sought to justify the order

passed by the learned Trial judge and contended

that as per the provisions of the Mohammedan Law

the interim custody of male minor child upto the

age of seven years has to be accorded to the

respondent-mother and also contended that the

trial Court considering the interest and welfare of

the child has rightly ordered custody of the minor

child to the respondent-mother. It is also brought

to the notice of this Court the subsequent events

that have been transpired between the parties and

contended that the petitioner-husband during the

pendency of the petition, has remarried and in the

said wedlock a child is born and as such, contended

that the interim custody if given to the petitioner-

husband would be against the welfare of the child.

10. Having heard the learned counsel for the

parties the only point that arises for consideration

in the petition is :

'whether divorced wife is entitled for custody of minor child under the Mohammedan Law?'

11. It is not in dispute that the parties are

Muslims and governed by the Personal Law. It is

also not in dispute that a Khulanama was entered

into between the parties and the husband and wife

are living separately. The application seeking the

custody of the minor child is by the divorced

mother. Under the Muslim Personal Law, if the child

is below the age of seven years the mother had a

preferential right for the custody of the child being

the paramount interest of the child and there is no

bar to mother seek right even if she is divorced.

Section 352 of the Mohammedan Law reads as

under:

"352. Right of mother to custody of infant children.- The mother is entitled to the custody

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(hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f)."

12. Perusal of Section 352 of the

Mohammedan Law clearly depicts that the custody

of the minor child upto seven years is to be with the

mother for the welfare of the child and the mother

of the child shall not suffer disqualification to her

custody of the child for the mere fact that she is not

residing with the husband-the child's father and

that apart, importance must be attached to

considering the tender age of the minor and the

love and affection that can be bestowed by none

other than the mother. Thus, it is perfectly clear

that under Mohammedan Law as envisaged under

Section 352 the mother is entitled for custody upto

the age of seven years.

13. It is also relevant to note that the

contention of the learned counsel for the petitioner-

husband that the respondent-mother is disqualified

to have custody of the minor child in the light of

having obtained Khulanama does not appraise the

mind of the Court as Section 354 of the

Mohammedan Law envisages the females who are

disqualified for the custody of the child. Section of

354 of the Mohammedan Law reads as under:

"354. Females when disqualified for custody. - A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody - (1)if she marries a person not related to the child within the prohibited degrees (ss.260-261), e.g., a stranger (n), but the right revives on the dissolution of marriage by death or divorce (o); or,

(2)if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or,

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(3)if she is leading an immoral life, as where she is a prostitute (p); or

(4)if she neglects to take proper care of the child."

Section 354 of the Mohammedan Law does

not disqualify a female for custody of a child, who is

divorced. This being so, Sections 352 and 354 has

to be read conjointly and not in isolation and with

the provisions of the G & WC Act, 1890 and the

directions needs to be issued regarding custody,

considering the wellbeing of the child.

14. Under similar circumstances, the Kerala

High Court had occasion to consider the rights of a

divorced wife to seek custody of minor son in the

case of Bushara Vs. Shibinu reported in AIR

2015 KERALA 21 (Bushara) and held at paragraph

Nos.6 and 7, which reads as under:

"6. We are not impressed by these submissions and plea made by the learned counsel for the appellant for reasons more than

one. Mulla Principles of Mahomedan Law, edited by Justice M. Hidayathullah (former Chief Justice of India) and Sri. Arshad Hidaya-thullah (LexisNexis - Butterworths Wadhwa) (19th Edition Page 287), deals with the issue. Chapter XVII Part B thereof deals with the guardianship of person of a minor and Section 352 thereunder, may be quoted below for easy reference:

"Sec.352. Right of mother to custody of infant children.- The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."

After quoting the above provision of Muslim Personal Law, the learned authors state cogently that the principles propounded in these sections cannot, however, be read in isolation and divorced from the provisions of the Guardians and Wards Act, which vests in the court a discretion to direct return to the custody of a guardian a ward, who leaves or is removed from

his custody in appropriate cases where the Court thinks that such a direction is necessary for the well-being of the ward and that where the case of personal law indicates one course of action and considerations of the welfare of the minor indicates another, the former must be sub- ordinated to the latter. The words that furnish a key to the correct legal position are to be found in Sec.17 of the Guardians and Wards Act and that the principles of personal law must be applied, "subject to the provisions of this Section" (viz., Section 17). Accordingly, it is opined by the learned authors that if there is a conflict between the personal law to which the minor is subject and considerations of his or her welfare, the latter must prevail as held in the case Mohd. Yunus v. Shamshad Bano, reported in AIR 1985 All. 217.

7. It has been held in Momtaz Begum v. Mubarak Hussain reported in AIR 1986 M.P. 221 that even if the mother must have custody of the child of tender age, till he attains the age of 7 years, the father must not be denied access to the child. In the case of Imambadi v. Mutsaddi reported in (1918) 45 Indian Appeals (I.A.) 73: (AIR 1918 PC 11), pp.83-84, their Lordships of the Privy Council held that "It is perfectly clear

that under the Mohammedan 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." Justice M.Hidayatullah, who has authored the abovementioned authoritative textbook, has opined that it would appear from the passage quoted above from the Privy Council decision that the father is the primary and natural guardian of his minor children, and that the right of custody of the mother and female relations mentioned in Sec.353 below is subject to the supervision of the father, which he is entitled to exercise by virtue of his guardianship. If so, the right of hizanat does not carry with it all the powers which a guardian of the person of a minor has under the Guardian and Wards Act, 1890. It has been held in case Mohammed Shafi v. Shamin Banoo reported in AIR 1979 Bom. 156 that even during the marriage, the custody of the minor children in case of a boy until he attains the age of 7 years, and in the case of a female until she attains puberty, is with the wife."

15. Thus in view of the provisions of

Mohammedan Law and in view of the judgment of

the Kerala High Court in Bushara's case stated

supra, the respondent-mother is entitled for

custody of the male child, even if she is divorced

from the child's father.

16. The Trial Court on consideration of the

material on record has rightly ordered for the

custody of the minor child to the respondent-

mother and accordingly, the same does not call for

any interference and point framed for consideration

is answered in the affirmative in favour of the