Muslims Can Invoke 'Guardians And Wards Act' Provisions For Seeking Minor's Custody: Allahabad High Court

A bench of Justice Anil Kumar-X said that while personal law may guide the Court in determining the rights of parties; however, the paramount consideration is always the welfare of the minor, which overrides all other considerations.

The Court was essentially dealing with a habeas corpus writ petition filed by one Rizwana, seeking a directive to produce her two minor children [10-year-old son and 5-year-old daughter] and hand over their custody to her.

It was her case that she was driven out of her matrimonial home by her husband [respondent no. 4] after she failed to fulfil his demands for dowry and her children were also snatched away from her custody.

Her counsel argued that under Muslim personal law, the custody of minor children lies with the mother. He also relied upon HC's judgment in Amal Irfa vs. State of U.P., wherein it was held that the custody of an infant Muslim child lies with the mother, and she is entitled to the custody of a male child till the age of seven years

Lastly, it was contended that child custody for Muslim couples cannot be decided under the Guardians and Wards Act due to the provisions of Section 6 of the Act.

The bench, however, rejected this argument as it clarified that Section 6 does not exclude Muslims from invoking its provisions.

“Section 6 of the Act does not bar any class of persons from approaching the Court; rather, it operates in the context of recognizing certain categories of guardians”

The Court observed that the term 'guardian' is of wide import and encompasses the concept of "custody". It held that even where the parties are governed by Muslim personal law, the Court's jurisdiction under the Guardians and Wards Act remains intact.

Furthermore, the Court noted that clause (g) of the Explanation to Section 7 of the Family Courts Act, 1984, specifically confers jurisdiction upon the Family Court to adjudicate disputes relating to guardianship and custody of any minor.

"Thus, even in cases where custody of a minor is sought, including between parties governed by personal laws such as Muslim law, the Family Court is duly empowered to entertain and decide such matters", the bench remarked.

The bench also observed 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.

"Such an exercise is not feasible in proceedings under a writ of habeas corpus, which are summary in nature and not intended for detailed adjudication of disputed questions relating to custody," the Court observed.

Consequently, the High Court disposed of the petition by directing the mother to avail the statutory remedy before the competent Family Court.