Mother Entitled To Custody Of Male Child Until He Completes Age Of 7 Years As Per Muslim Law: Allahabad High Court

The Allahabad High Court has observed that according to the Mohammedan Law, a mother is entitled to custody (hizanat) of a male child until he completes the age of 7 years.

The bench of Justice Karunesh Singh Pawar observed thus while allowing a habeas corpus filed by the mother (Rehana) of the detenue-Takbeer Khan, aged about 3 years and 7 months. In her plea, she had sought custody of her child, currently residing with her husband (Intiyaj Khan/opposite party No.4).

"...considering the tender age of the detenue, in peculiar facts of this case, this Court is of the view that custody of the detenue should be given to the deponent-Rehana", the bench observed as it directed the husband to hand over the custody of the detenue to his mother/deponent.

The facts in brief

In the Habeas Corpus petition, the petitioner asserted that respondent No.4, her husband, subjected her to physical abuse under the influence of alcohol. As a result of the alleged atrocities, she returned to her parental home with her son (born in 2020) in the year 2021.

The petitioner-deponent further contended that despite temporarily resuming cohabitation with her husband at her matrimonial home, his behaviour did not change and subsequently, a case under the Protection of Children from Sexual Offences (POCSO) Act was filed against the husband, leading to his charge-sheeting and approximately a year of incarceration.

It was her further case that upon his release on bail, he purportedly engaged in an extramarital affair, which was objected to by her. Following this development, the husband allegedly coerced her to vacate the matrimonial residence, while retaining custody of the detenue, Takbeer Khan, against the deponent's will. Consequently, this petition was filed to seek judicial intervention for the custody of Takbeer Khan/detenue.

High Court's observations

At the outset, the Court noted that at the time of the filing of the petition, the detenue was 2 years old and presently around 3 years and 7 months old and it was undisputed that opposite party No.4 is facing rape charges. 

In this regard, referring to the SC ruling in the case of Nil Ratan Kundu and another versus Abhijit Kundu 2008, the Court noted that the character of the proposed guardian is required to be considered to determine the suitability of the spouse to have custody of the minor child.

"A perusal of the judgment in Nil Ratan Kundu's case (supra), it is clear that the pendency of a criminal case is one of the important considerations for assessing the character of the proposed guardian. The opposite party No.4 in this case is facing a heinous charge like rape which cannot be lost sight of while exercising the jurisdiction of habeas corpus. The primary consideration for this Court is to protect and watch for the rights of the minor child who has approached this Court. The ultimate well-being and welfare of the child as well as the future prospect of the child have to be borne in mind while adjudicating this jurisdiction," the Court observed.

Furthermore, the Court noted that the opposite party No.4 remains under the influence of alcohol, is an illiterate, careless and rigid kind of person who has also an illicit relationship with other women and these factors are against him.

"...the fact remains that deponent is the mother of the detenue, aged about 3 years and 7 months, and ordinarily the custody of the minor who is just 3 years and 7 months of age vests with the mother," the Court added as it held that the custody of the detenue was liable to be given to the deponent-Rehana.

Accordingly, the writ of habeas corpus was issued directing the opposite party No.4 to hand over the custody of the detenue to the deponent of the petition namely, Rehana forthwith.

Appearances

Counsel for Petitioner: Gibran Akhtar Khan, Mohammad Asmar Ansari

Counsel for Respondent: G.A., Brijesh Kumar Yadav, Prabhoo Dayal

Case title - Takbeer Khan (Minor)Thru. His Mother Rehana vs. State Of U.P. Thru. Prin. Secy. Home Lucknow And 3 Others 2023 LiveLaw (AB) 493 [HABEAS CORPUS WRIT PETITION No. - 256 of 2022]

Case Citation: 2023 LiveLaw (AB) 493

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