The man, in a habeas corpus (produce the person) petition filed in the HC, said both he and his wife were Muslims and under the Mohammedan Law, the father is considered the natural guardian of the child
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The Bombay High Court while refusing to grant any relief to a Muslim man who had alleged that his wife had forcibly taken away his minor daughter said on Monday that religion is not a decisive overriding factor and welfare of a child is more important.
The man, in a habeas corpus (produce the person) petition filed in the HC, said both he and his wife were Muslims and under the Mohammedan Law, the father is considered the natural guardian of the child.
Hence, the custody of the three-year-old girl should be handed over to the petitioner, the plea had said. The father, in the plea, said his wife, who was born in Pakistan but in 1995 became an Indian citizen, was presently in Delhi but he apprehended that she would leave the country with the child.
A division bench of Justice S V Kotwal and Justice S M Modak on Monday dismissed the petition and said it has to consider the welfare of the child; the character and capacity of the proposed guardian and religion was one of the many factors that needs to be considered.
“Thus, the religion of a party is not the only consideration before the court in such cases. The religion of the minor is one of the considerations, but it is not a decisive overriding factor,” HC said.
“In our opinion, for a three-year-old girl child, being in the custody of her mother would be for her welfare. The mother is earning sufficiently to provide for herself and for her daughter,” the court said.
The HC relied on Supreme Court judgments that held the custody of a minor child, especially a girl, has to be with her mother and only in exceptional circumstances the custody of the minor girl child is taken away from the mother and given to someone else.
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