Andhra HC (Pre-Telangana)
Syed Liaquat Hussain vs Superintendent Of Police And Ors. on 20 August, 2002
Equivalent citations: 2002(6)ALD145, 2002(5)ALT585, 2002(2)ALT(CRI)468
JUDGMENT B.S.A. Swamy, J.
1. The petitioner Syed Liaquat Hussain son of Syed Mohd. Yahiya filed this Writ of Habeas Corpus seeking custody of his minor boy aged about 5 months from his in-laws by contending that after the death of his wife he being the natural guardian of the son he is entitled to have the custody of the child. In support of his contention Mr. Md. Sherrif, the learned Counsel for the petitioner vehemently contended that the Court cannot pass any orders in contravention of the tenets of the Mohammedan Law and he placed strong reliance on Para 357 of the Mulla's Principles of Mohammedan Law which is an authenticated book on personal laws of the Muslims. It is necessary to extract para 357 of the book, which reads as under:
357. Right of father and paternal male relations to custody of boy over seven and of girl who has attained pouberty :-- The father is entitled to the custody of a boy over seven years of age (u) and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given in Section 355 above, and subject to the proviso to that Section. (See paragraph 355 and the case noted there.) If there be none of these, it is for the Court to appoint a guardian of the person of the minor.
2. From this it is evident that the father or the paternal relations of the boy are entitled to custody of the boy only after he completes 7 years and in case of girl after attaining puberty. In fact, Mr. Md. Sheriff learned Counsel for the petitioner do not know the fact that the Guardian and Wards Act also applies to Muslims wherein the custody of the minor Muslim child up to the age of 7 years shall be with the mother.
3. The question now that falls for consideration is whether when the mother died whether her parents are entitled for custody of the child. Para 353 deals with the custody of the minor children in the absence of the mother which reads as under:
353. Right of female relations in default of mother :--Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:--
(1) mother's mother, how high soever; (2) father's mother, how high soever; (3) full sister;
(4) uterine sister;
(5) (consanguine sister); (6) full sister's daughter; (7) uterine sister's daughter; (8) (consanguine sister's daughter); (9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters.
4. From this it is evident that mother's mother is having first preference over all others to have custody of the child till he attains the age of 7 years.
5. Interestingly, Mr. Sherrief, the learned Counsel for the petitioner contends that the question of handing over the child to the grand mother will arise only after the Court declares the father as unfit to have the custody of the minor child. From where the learned Counsel got this authority we do not know. What Para 357 says is after completion of 7 years the Court is entitled to declare him as unfit to be the guardian of the child and entrust the custody of the child to a person other than the natural guardian. When Paras 353 and 357 read together the intention of the Muslim tenets is very crystal clear. Upto the age of 7 years in case of a boy in the absence of his mother it is the mother of the mother that gets the custody of the child but not the father. After 7 years the father can claim custody of the child and if the Court feels that he is unfit to be appointed as a guardian, then it can make an order entrusting the custody of the child to another person keeping the welfare of the child which is a paramount consideration in passing orders by this Court.
6. We may also go on record that since the petitioner is aged about 35 years there is every possibility of contacting a second marriage and if such a situation takes place the welfare of the child cannot be said to be safe in the hands of the father and on the other hand the respondents were having only one daughter who died during delivery and naturally they have more love and affection towards the child and the welfare of the child will be more safe in the hands of the 3rd respondent than the petitioner.
7. Hence, we do not find any merit in this writ petition and it is accordingly dismissed.
8. However, since the petitioner being the natural father he and his relatives are given visiting rights to visit the child at their choice and enquire about the welfare of the child. By this process the petitioner can develop affection between him and his son and it may come as a handy to him while claiming custody of the child after completion of 7 years. It is always open to the petitioner to approach the competent Court seeking guardianship after the child completes 7 years.