Under Muslim Law Mother Entitled to Custody of Male Child till 7 Years of Age: Allahabad HC Allows Habeas Corpus Plea

The Allahabad High Court has noticed that underneath Mohammedan regulation a mom is entitled to the custody (hizanat) of her male youngster till he has accomplished the age of seven years and of her feminine youngster till she has attained puberty. The courtroom mentioned this just lately whereas directing the custody switch of a Muslim girl’s minor son to her.

The bench of Justice Karunesh Singh Pawar handed the order in a habeas corpus petition moved by a lady named Rehana in search of route to recuperate and produce her son aged 3 years and 7 months. Her son was within the custody of her husband and allegedly he and his household weren’t correctly following the courtroom’s earlier order granting visitation rights to Rehana.

Rehana’s counsel knowledgeable the courtroom that she and her husband acquired married in 2017. However, after a short time, he began beating her underneath the affect of alcohol. Out of wedlock, one youngster was born in 2020 to the couple. Due to the alleged atrocities dedicated by the husband, Rehana returned to her dad and mom’ home in 2021.

A case underneath sections 363, 366, and 376 of IPC learn with part 3/4 of the POCSO Act was additionally registered in 2017 during which the husband had remained in jail for nearly a 12 months and in the end was launched 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; due to this fact, contemplating the general curiosity of the son, it won’t be protected to go away the kid in his custody.

The excessive courtroom mentioned that its major consideration could be to shield and look ahead to the rights of the minor youngster and never the rights of the respective events reminiscent of compromise/divorce, and so forth, within the proceedings earlier than 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,” famous the single-judge bench whereas referring to the excessive courtroom’s division bench judgement in Amal Irfa vs State of UP & 2 others (2014).

Therefore, whereas stating that the husband was an illiterate, careless, and inflexible form of individual having a bootleg relationship with one other girl and used to stay underneath the affect of alcohol, the excessive courtroom, preserving in view the regulation laid down by the Supreme Court within the case of Nil Ratan Kundu and one other versus Abhijit Kundu (2008) that character of the proposed guardian is required to be thought of to decide the suitability of the partner to have custody of the minor youngster, granted the kid’s custody to Rehana.

However, the bench made it clear that it handed the current order, contemplating the emergent want to intervene and look to the welfare and safeguard the curiosity of the kid, and it had not adjudicated the ultimate rights of the events to have the kid’s custody.