The Chhattisgarh High Court recently held that if there is a conflict between the personal law to which a minor is subject, and the consideration of a minors’ welfare, the latter must prevail [Irfan Ur Rahim Khan v Farha Khan].
A Division Bench of Justices Goutam Bhaduri and Rajani Dubey took into account the children’s choice in a custody dispute, while emphasising that children cannot be treated as a commodity in a battle between the father and mother.
“If there is a conflict between the personal law to which the minor is subject and the consideration of the minors’ welfare, the latter must prevail. Likewise where the provisions of law are in conflict with the provisions of Guardians and Wards Act, the latter will prevail,” the Court said.
The Bench was examining an appeal against an order of the Family Court granting custody of the parties’ two children to the respondent-mother.
The couple made several allegations against each other, and the appellant- father heavily relied on the settlement deed between the parties under which custody of children was given to him.
The respondent, however, submitted that the appellant had committed fraud in order to execute the settlement.
The Court took a clear stand that this was not a case where it could be held that due to a contract between the couple, all other oral evidence must be excluded.
Thus, the statements made by both the children were taken into account.
“Reading of their statements would show that both have expressed that they love mother and wanted to stay with her,” the Court stated.
“Can we ignore the welfare of the minor children by accepting the submission of the appellant that oral evidence would be excluded? Certainly the answer would be in negative,” the Bench added.
With this, the tenets governing guardianship under Mohammedan Law were examined by the High Court. The Bench took note that the mother was entitled to custody of her male child until he completes the age of 7 years and her female child until she attains the age of puberty i.e., 14 years.
Despite this, the Court remained aware of the well-established principles that the welfare of the minor must be taken into consideration while appointing a guardian.
The judgment of the Supreme Court in Mousami Moitra Ganguli v Jayanti Ganguli was relied on by the Division Bench, where the Supreme Court had expressed the view that while deciding an issue as to which parent the care and control of a child should be committed, the first and paramount consideration should be the welfare and interest of the child and not the rights of the parents under a statute.
Considering the statements made by the children in the present case, the view taken was that their answers were logical and thus, it appeared that they were old enough to form an intelligent preference to be in the custody of the mother.
“The custody battle of children requires a human touch apart from the statutory obligation, therefore, we are of the view that the children’s wish and will would prevail over,” the judgment said.
The Court, therefore, held that the order of the Family Court did not require interference and the custody of the children should continue with the mother.
The Court, however, also protected the interests of the father by laying down detailed guidelines for visitation rights while emphasising on the importance of the bond to be maintained between the father and the children.
“It held that the communication will help in maintaining and improving the bond between the children and the parent who is denied the custody. If that bond is maintained, the children will have no difficult in moving from one home to another during vacation or holidays,” the Court said.
Senior Advocate AA Ansari with advocates Aman Ansari and Meera Ansari appeared for the appellant while the respondent was represented by Advocate Indira Tripathi.
Read Judgment here: