The High Court of Allahabad disposed of the Habeas Corpus writ petition, observing that the custody of a minor child cannot be determined in a mechanical manner without arriving at a definite conclusion regarding the welfare of the child, which is the paramount consideration.
The case arose from a petition filed by the petitioner, the natural mother, seeking the production and custody of her minor child from the alleged custody of their father. The petitioner submitted that the marriage was performed in 2013 as per Muslim rituals. However, after failing to fulfill the dowry demands, she was driven out from her matrimonial home, and her children were snatched from her custody. It was also submitted that the custody of minor children belonging to Muslim couples cannot be decided under the Guardians and Wards Act, 1890 (Act of 1890), as they are governed by the Muslim Personal Law.
On the other hand, the respondent, while opposing the petition, submitted that the custody of the minor with their father is not prohibited under Muslim personal laws. They further argued that the jurisdiction under the Act of 1890 remains intact regardless of the personal law governing the parties.
Hearing the petition, the bench of Justice Anil Kumar-X noted that the term “guardian” under Section 4(2) of the Act of 1890 and Section 4(b) of the Hindu Minority and Guardianship Act, 1956, is of wide import and encompasses the concept of custody. The court also clarified that Section 6 of the Act of 1890 does not exclude Muslims from invoking its provision and held that the Act of 1890 is a general law relating to guardianship and is applicable to all persons, irrespective of religion. The court has further emphasized that the paramount consideration in custody matters is the welfare of the minor.
Additionally, the court has observed that Section 7 of the Family Courts Act, 1984, specifically vested jurisdiction in the Family Court in respect of the guardianships of the person or the custody of, or access to, any minor. The court, while determining the welfare of the child, held that it requires a detailed adjudication that is not intended for the summary nature of habeas corpus proceedings.
Accordingly, the court has disposed of the petition and directed the petitioner to approach the competent Family Court.
Appearance:
Counsel for Petitioner- Dharmraj Chaudhary, Pradeep Kumar Singh
Counsel for Respondent- G.A., Ravindra Prakash Srivastava
