The Allahabad High Court has observed that under Mohammedan law a mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The court said this recently while directing the custody transfer of a Muslim woman’s minor son to her.
The bench of Justice Karunesh Singh Pawar passed the order in a habeas corpus petition moved by a woman named Rehana seeking direction to recover and produce her son aged 3 years and 7 months. Her son was in the custody of her husband and allegedly he and his family were not properly following the court’s earlier order granting visitation rights to Rehana.
Rehana’s counsel informed the court that she and her husband got married in 2017. However, after a short while, he started beating her under the influence of alcohol. Out of wedlock, one child was born in 2020 to the couple. Due to the alleged atrocities committed by the husband, Rehana returned to her parents’ house in 2021.
A case under sections 363, 366, and 376 of IPC read with section 3/4 of the POCSO Act was also registered in 2017 in which the husband had remained in jail for almost a year and ultimately was released on bail in 2019.
The counsel for Rehana argued that the couple’s son had been illegally detained by her husband who was an alcoholic and an accused in a rape case; therefore, considering the overall interest of the son, it will not be safe to leave the child in his custody.
The high court said that its primary consideration would be to protect and watch for the rights of the minor child and not the rights of the respective parties such as compromise/divorce, etc, in the proceedings before it.
“The deponent of the petition is none other than the mother of the detenue, aged about 3 years and 7 months old. According to the Mohammedan Law, mother is entitled to custody (hizanat) of a male child until he completes the age of 7 years,” noted the single-judge bench while referring to the high court’s division bench judgement in Amal Irfa vs State of UP & 2 others (2014).
Therefore, while pointing out that the husband was an illiterate, careless, and rigid kind of person having an illicit relationship with another woman and used to remain under the influence of alcohol, the high court, keeping in view the law laid down by the Supreme Court in the case of Nil Ratan Kundu and another versus Abhijit Kundu (2008) that character of the proposed guardian is required to be considered to determine the suitability of the spouse to have custody of the minor child, granted the child’s custody to Rehana.
However, the bench made it clear that it passed the present order, considering the emergent need to intervene and look to the welfare and safeguard the interest of the child, and it had not adjudicated the final rights of the parties to have the child’s custody.
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