Courts holds child’s welfare more important than father’s legal entitlement

The Bombay High Court granted a woman custody of her 9-year-old son, prioritizing the child's welfare over Muslim personal law favoring the father.

MUMBAI: The Bombay high court on Monday struck down a 2023 family court order directing a woman from Bidar, Karnataka to hand over the custody of her 9-year-old son to her estranged husband. A single-judge bench of justice Shailesh P Brahme noted that under Muslim personal law, the father was entitled to custody after a child turned seven, but the court held that the boy’s welfare was most important and he would not be able to thrive in an environment where his own father felt like a stranger.

Courts holds child’s welfare more important than father’s legal entitlement

The couple had gotten married in 2010, and had a child in 2015. However, by June 2020, the woman alleged that her husband was ill treating her and left him to live with her parents in Bihar. A year later the husband approached the Nilanga district court for custody of the child, claiming that the wife was living with another man and neglecting her son’s health and education.

The woman refuted the claims and said that she had suffered dowry related harassment. She added that she was running a clothing business and independently providing for her child.

However, in December 2023, the district judge granted the child’s custody to his father and gave the woman visitation rights. She then appealed at the Bombay high court in 2024, and a series of orders were passed between March 2024 and October 2024, which temporarily placed the child in his mother’s custody and gave the man visitation rights.

When the woman failed to comply with the court orders and refused the man to visit the son, citing illness and other reasons, the court initiated contempt proceedings against her. On May 30, the court finally interacted with the minor, and saw that the boy did not want to live with his father.

Advocate Mahesh Kale, representing the woman, further justified that the woman should have the child’s custody by telling the court that while the man had no fixed income, the woman ran a business of her own.

Advocate Madhaveshwari Mhase, representing the husband, said that as per Muslim personal law, the father is the natural guardian of a child after he turns seven. He added that the wife had left the husband without any justification and claimed that the documents concerning her income had several discrepancies.

The court finally set aside the earlier order and granted custody of the body to his mother along with some conditions including visitation rights of the man. The court noted the Muslim personal law but cited earlier Supreme Court judgements and held that the minor would be more comfortable and safe with his mother. The court added that the minor’s emotional attachment, comfort, and preference to stay with his mother was most important.

The court added that the child’s stability and security were essential to his development, and said that despite the law favouring the man, the court’s decision was based on the minor’s contentment, health, and favourable surroundings.

“I do not find that the interest of the minor is better secured by handing his custody to the father,” the court said and added that neither had the man shown evidence of having a better financial status than the woman, nor was there a female member present in his house.