Excelsior Correspondent
Srinagar, Sept 13: The High Court has held that the custody of a minor child primarily vests with the mother under Muslim Personal Law, unless she is disqualified on legally recognized grounds.
This has been held by the bench of Justice Javed Iqbal Wani in an appeal against the order of trial court whereby directions were issued for handing custody of two minors to their father.
“Under Muslim Personal Law first and foremost custody of the minor belongs to the mother and she cannot be deprived of that right so long as she is not found guilty of misconduct or disqualified on legally recognized grounds and said right of mother of custody continues unless such disqualification is established”, Justice Wani recorded.
The dispute arose out of a matrimonial conflict between the parties, culminating in divorce and the respondent-father’s conviction for assaulting the appellant-mother by a Qatari court. Custody proceedings in Qatar resulted in an order granting custody of the children to the appellant-mother, while allowing visitation rights to the father.
After the appellant-mother moved to India with the children, in defiance of the court ruling in Qatar, the respondent-father sought custody before the High Court of Jammu & Kashmir and Ladakh. While a Single Judge dismissed his petition, with the liberty to approach the competent court.
He then filed custody proceedings before the Additional District Judge Srinagar, who ordered interim custody to the father, prompting the appellant to challenge the order in the High Court.
The Court reiterated the principle that custody should not ordinarily be disturbed from the parent with whom the minors are already residing, unless compelling and exceptional circumstances demand otherwise. Examining the facts, the Court noted that the minors had been living with the appellant-mother in Kashmir since 2022.
“Transferring custody to the respondent-father, who intended to take them to Qatar, would remove the matter from the Court’s supervisory jurisdiction and disrupt the settled environment of the children. The Bench found that the welfare of the children clearly lay in their continued custody with the mother, while at the same time acknowledging the father’s affection and his keen desire to have exclusive custody”, read the judgment.
The court set aside the trial court order and directed that in order to provide the respondent-father fair and reasonable access to the children, he shall be entitled to interim custody whenever he visits Srinagar, subject to a maximum of five days and on special occasions such as Eid, provided that the arrangement does not affect the children’s comfort or education.
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