Muslim personal law, India: Court judgments

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Personal law to be overridden when…

Minor’s welfare is at stake

March 18, 2022: The Times of India

Raipur: The Chhattisgarh high court has held if there is a conflict between the personal law to which a minor is subject, and the consideration of a minor’s welfare, the latter must prevail.


Disposing of an appeal filed by Irfan Ur Rahim Khan, challenging a Bilaspur family court order which gave custody of the child to the mother, a division bench of Justice Goutam Bhaduri and Justice Rajani Dubey said in the order that “under the principles of Muslim law, the mother is entitled to custody of her male child until he completes the age of seven years and of her female child until she has attained the age of 14. However, the principle of law, which is well established, is that in a proceeding for appointment of a guardian, it is not the guardianship of a minor that is of importance, but the welfare of the minor has to be taken into consideration. If there is a conflict between the personal law to which the minor is subject and the consideration of the minors’ welfare, the latter must prevail”.

“Likewise, where the provisions of the law are in conflict with the provisions of the Guardians and Wards Act, the latter will prevail over the former,” the order says. The HC observed that the custody battle of children requires a “human touch”, apart from the statutory obligation. “Therefore, we are of the view that the children’s wish will prevail. The communication will help in maintaining and improving the bond between the children and the parent who is denied custody,” it said.

The order quoted an apex court order that a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best served by ensuring that both parents have a presence in his/her upbringing. According to the appeal, the father and mother, along with the twins, lived together till 2014 when the couple became estranged. The woman, after informing Durg Mahila police station, came to Bilaspur along with the kids and started living separately in a rented house. The kids’ father used to meet the children during their stay at Bilaspur. Since he is a police officer, he was transferred to Sukma and was unable to meet the children.

Khan moved the HC, challenging a family court order, for the custody of children, arguing that his wife does not have any source of income and that he can “maintain children in a better way” since he is an officer. The court disposed of the appeal after the statements by the children were taken into account. The kids expressed love for their mother and chose to stay with her. The father was given visitation rights.