Welfare of child overrides Muslim personal law: Bombay High Court grants custody of child to mother

The Bombay High Court at Aurangabad on Monday ruled that the welfare of a child must take precedence over religious personal law, and granted custody of a nine-year-old boy to his mother despite the principles of Muslim law which vest custody of a male child above the age of seven with the father.

Justice Shailesh Brahme held that while personal law might support the father's claim, the child’s well-being was paramount.

“On the legalistic basis though merits of the matter tilt in the favour of respondent (father), considering minor’s ordinary contentment, health and favourable surroundings, this Court is inclined to decide in favour of the appellant (mother). When the personal law is pitted with comfort and welfare of the child, latter would have upper hand," the Court held.

The Court was hearing a custody battle between a 29-year-old mother and her 41-year-old husband. The two got married in 2010 and a son was born to them in 2015. In 2020, the mother left the matrimonial home with their child and began living with her parents in Bidar, Karnataka.

The father, residing in Nilanga in Maharashtra’s Latur district, approached a local court seeking custody of the child.

In December 2023, the lower court granted custody to the father, citing, among other things, alleged poor living conditions at the mother’s residence and the father's status as natural guardian under Muslim personal law.

The mother challenged the order in High Court, arguing that the welfare of the child should outweigh religious prescriptions. Her lawyer submitted that the child had refused to live with the father during an interaction with the trial judge and again before the High Court.

He also pointed out that the father had not demonstrated a stable source of income, while the mother was running a clothing business and had been looking after the child’s health and education.

The father’s counsel countered that under Muslim law, custody of a male child transfers to the father upon completion of seven years. She cited religious texts and relevant provisions of the Guardians and Wards Act, claiming the father was legally entitled to guardianship.

The Court, however, emphasised that legal entitlements under personal law must give way to the child's best interests.

“Minor appears to be extremely attached to the appellant (mother). Minor is of 9 years old and for few years further he needs appellant’s protection and care physically...Respondent (father) does not come with a positive case of his source of income except his plea of labour work and pension of his father.”

During an in-chamber interaction with the child, the Court observed that he appeared to be intelligent and emotionally mature for his age. It also noted a strong emotional bond between the boy and his mother, highlighting that he expressed a clear unwillingness to live with his father.

Subsequently, the Court concluded that although personal law and codified law tilt in favour of the respondent, the minor in the case at hand would be "more comfortable and safe" with his mother/appellant.

The Court set aside the earlier custody order and allowed the mother to retain custody of the child. The father was granted visitation rights, including one meeting per month and seven days of access during long vacations.

Advocate Mahesh Kale appeared for the mother.

Advocate Madhaveshwari Mhase, instructed by Lex Aquil, appeared for the father.

[Read Order]