The Rajasthan High Court, in a significant ruling on child custody under Mohammedan Law, has declared a mother’s custody of her minor son illegal, citing her prolonged neglect of the child and her contracting a second marriage while her first marriage was still subsisting. A Division Bench of Justice Manoj Kumar Garg and Justice Ravi Chirania allowed a habeas corpus petition filed by the child’s paternal grandfather, transferring custody to him and holding that the mother’s conduct disqualified her under personal law.
The Court held that while a biological mother typically has the primary right to custody, this right is forfeited when her conduct is serious enough to warrant disqualification under personal law. The paramount consideration, the Court reiterated, is always the welfare of the child.
Background of the Case
The petitioner, Rahisuddin Khan, is the paternal grandfather of the minor child, Jakwan Khan @ Rakan. The child’s father, Rizwan Khan (the petitioner’s son), married the respondent, Smt. Sehra Khan, on December 25, 2006. The minor son was born on November 10, 2012.
According to the petitioner, Sehra Khan left the matrimonial home in 2016, leaving the minor child in his care. Subsequently, on May 21, 2018, she contracted a second marriage with one Mohammed Ujair Ansari in Mumbai without dissolving her first marriage with Rizwan Khan. The petitioner stated he cared for his grandson from 2018 until May 30, 2025, when the mother allegedly kidnapped the child from his lawful custody. This led the grandfather to file an FIR and subsequently the present habeas corpus petition, seeking the child’s return from what he termed the “illegal and wrongful confinement” of the mother.
Arguments of the Parties
Petitioner’s Submissions:
The petitioner’s counsel, Mr. C.P. Soni, argued that the respondent-mother was disqualified from having custody of the child under Section 354 of Mulla’s Principles of Mahomedan Law. He submitted that her second marriage to a “stranger” (a person not related to the child within prohibited degrees) and her complete neglect of the child from 2018 to 2025 were grounds for disqualification under clauses (1) and (4) of the said section.
Evidence submitted by the petitioner included the “nikahnama” of the second marriage, a written complaint by the mother’s own brother to the Marriage Registrar objecting to the illegal marriage, and a handwritten letter by the mother to the Mumbai police dated May 25, 2018. In that letter, she admitted her mistake, stating, “…my second marriage dated 21.05.2018 is in violation of Muslim Law and now she regret for the same and would close all her relationship with Mohammed Ujair Ansari.”
Despite this admission, she continued to live with her second husband and had another child with him. The petitioner argued that a document of “khulanama” (dissolution of the second marriage) presented by the mother was fabricated and back-dated to strengthen her claim to custody.
Respondent’s Submissions:
Counsel for the respondent-mother, Mr. Manish Vyas, contested the maintainability of the habeas corpus petition, arguing that the appropriate remedy was an application under the Guardians and Wards Act, 1890. He claimed the mother left her matrimonial home due to cruelty and domestic violence, and that her first husband had pronounced “triple talaq.”
She admitted to the second marriage but claimed it was dissolved by “khulanama” on December 3, 2022. Her counsel argued that upon dissolution of the second marriage, her right to custody revived as per Section 354(1) of Mahomedan Law. As the biological mother, she contended she was legally entitled to retain custody for the child’s welfare.
Court’s Analysis and Judgment
The High Court first affirmed the maintainability of the habeas corpus petition in child custody matters. Relying on the Supreme Court’s decision in Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari And Others, the Bench observed:
“For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.”
The Court then examined the mother’s conduct, finding it to be a case of serious neglect. The judgment noted, “…she was completely careless in performing her matrimonial obligations without any justified reason and further she seriously neglected her first child whose custody is involved in the present case.” The Court concluded that her actions squarely disqualified her under Section 354(4) of Mulla’s Principles of Mahomedan Law.
The Court expressed “serious doubt about the veracity of ‘khulanama’ dated 03.12.2022” and stated its belief that the mother’s second marriage still subsisted. The Bench strongly deprecated the mother’s conduct before the court, noting that she initially denied the second marriage and only produced the questionable “khulanama” after being confronted with documentary evidence. The Court held:
“Any litigant or party who approaches the Court with unclean hands deserves no sympathy and leniency. The law in this regard is well settled.”
Ultimately, the decision turned on the paramount consideration of the child’s welfare. After an in-camera interaction with all parties, the Court found the grandfather financially sound and capable of providing a stable and nurturing environment, which he had done for over seven years. In contrast, the mother was financially dependent on her brothers.
Final Directions
The Court allowed the writ petition and declared the mother’s custody of the child to be illegal. The following directions were issued:
- The mother must immediately hand over the child’s custody to the petitioner-grandfather.
- The petitioner must continue to provide high-level education and care and create a fixed deposit of Rs. 15 lakh in the child’s name.
- The child’s father is restrained from taking the child out of India until he turns 18.
- The mother is granted limited visitation rights on the second Sunday of every alternate month.
- The mother is restrained from disturbing the peaceful possession of the child with the petitioner.
