The Bombay High Court (Aurangabad Bench) has ruled that the welfare of a minor must prevail over personal law doctrines in custody disputes, allowing a Muslim mother to retain custody of her 9-year-old son. The Court set aside a December 2023 decision by the District Judge, Nilanga, which had granted custody to the father.
Justice Shailesh P. Brahme, deciding a First Appeal filed by the mother, held that although under Muslim personal law, the father is entitled to custody after the child turns seven, the child’s emotional attachment, mental well-being, and overall welfare were paramount.
Background
The parties, both Muslims, were married in 2010 and separated in 2020. Since then, the child has been in the mother’s care. The father filed a petition under Section 7 of the Guardians and Wards Act, 1890, seeking custody, alleging that the mother left the matrimonial home without justification and was not providing proper care.
The mother denied the allegations, stating she had been subjected to domestic abuse and had independently raised the child while managing a clothing business in Bidar.
The District Court granted custody to the father, prompting the mother to file an appeal.
Key Findings of the High Court
During the appeal, the High Court passed interim directions for temporary custody and visitation, which the mother did not comply with, citing health issues. A contempt petition was filed by the father.
On July 14, 2025, the Court interacted with the child in chambers. Referring to that interaction, the judge noted:
“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.”
Though the Court acknowledged that under Muslim law, the right of hizanat transfers to the father after the age of seven, it concluded:
“When the personal law is pitted with comfort and welfare of the child, latter would have upper hand.”
Justice Brahme cited the Supreme Court’s ruling in Neethu vs. Rajesh Kumar, MANU/SC/0920/2025, observing:
“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…”
On Muslim Personal Law
The Court engaged with commentary on Muslim law by Dr. Tahir Mahmood and noted the distinction between hizanat (custody and upbringing) and wilayat-e-nafs (guardianship of person), stating:
“Hizanat is not merely the physical possession of the minor, it also includes the upbringing (parvarish) of the minor.”
While the law grants mothers custody during the child’s early years, the judge acknowledged:
“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… respondent is entitled to maintain the petition.”
Yet, the Court ultimately held that the father failed to establish financial stability or a conducive environment for the child’s upbringing:
“Respondent does not come with a positive case of his source of income except his plea of labour work and pension of his father.”
Conclusion and Final Order
Finding that “the deficiencies or lapses on the part of appellant is not sufficient enough to disentitle her to retain the custody of the minor,” the Court allowed the appeal.
Justice Brahme concluded:
“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.”
The District Court’s order was quashed. The mother retains custody. The father has been granted visitation rights during long vacations (seven days) and one Sunday or festival day per month, supervised by the District Court, Bidar.
The pending contempt petition will be adjudicated independently.
