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The Jharkhand High Court has held that under Hanafi law, the mother has a preferential right to custody (Hizanat) of her female child until she attains puberty, subject to the welfare of the child being the paramount consideration. The Court further held that custody of a minor child cannot be adjudicated ex parte, as hearing both parties is necessary for determining the child's welfare.

A Division Bench of Justice Sujit Narayan Prasad and Justice Sanjay Prasad was hearing an appeal against an ex parte judgment passed by the Additional Principal Judge, Additional Family Court-II, Ranchi directing the mother to hand over custody of her about four-year-old daughter to the father within a week.

The child was born on 11.01.2022 out of the marriage between the appellant and the respondent, which was solemnised on 06.09.2020 according to Muslim rites and customs. The mother had left the matrimonial home with the infant daughter on 02.03.2022. The father thereafter instituted a guardianship suit seeking custody of the minor girl. The Family Court proceeded ex parte and, after considering the evidence adduced by the father, allowed the guardianship suit and directed the mother to hand over custody of the child.

The mother challenged the order before the High Court, contending that the proceedings had been conducted ex parte without affording her a proper opportunity of hearing. It was submitted that there was no proof of service of notice and that she was regularly appearing in a separate maintenance case before the Family Court, yet had not been informed about the pendency of the guardianship proceedings.

The Court noted that the guardianship proceedings were declared ex parte on 13.10.2025 and the judgment was subsequently passed on 19.05.2026. The Bench observed that the case had been declared ex parte in a “hurried manner” without following the mandate of the Code of Civil Procedure. It held that before proceeding ex parte, effective steps to secure the appearance of the contesting party were mandatorily required to be taken.

The Court also noted that the appellant was regularly attending proceedings in her maintenance case during the pendency of the guardianship suit, including proceedings concerning recovery of maintenance arrears, but was not informed about the pendency of the guardianship proceedings.

The Bench then considered the position under Muslim law. It noted that guardianship of a minor is known as Hizanat under Muslim law and that under Hanafi law, the mother has a preferential right to custody of her male child until seven years of age and of her female child until she attains puberty. The Court observed:

“The mother has a preferential right to the custody of her children, known as Hizanat. For a male child, the mother's right to custody extends until the child completes seven years of age. For a female child, the mother's right continues until the daughter attains puberty. This right is not absolute and is subject to the paramount consideration of welfare of the child.”

The Court also referred to Section 17 of the Guardians and Wards Act, 1890 and held that the welfare of the child remains the paramount consideration in custody matters.

On the question of proceeding ex parte, the Bench held that the Family Court had not afforded the appellant an adequate and proper opportunity to appear in a sensitive custody dispute concerning a four-year-old girl. The Court observed:

“On the basis of the discussion made hereinabove, this Court is of the considered view that the issue of custody of a minor child cannot be adjudicated in the absence of participation by both parties. In matters where the paramount consideration is the welfare of the child, determination cannot be undertaken ex parte, for without hearing one of the stakeholders, the Court concerned is deprived of the necessary perspective to render a just and equitable decision.”

The Court accordingly quashed and set aside the Family Court's judgment dated 19.05.2026 and revived the guardianship suit from the stage of notice, directing that the dispute be adjudicated afresh on its own merits in accordance with law.

Case Title: S v. A

Case Number: F.A. No. 290 of 2026

Appearance:

For the Appellant: Mr. Kripa Shankar Nanda, Advocate.

For the Respondent: Mr. A.K. Sahani, Advocate; Ms. Trishna Sagar, Advocate.

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