Custody Rights Muslim Girl Not Attained Puberty After Mother's Death

Written by:

Adv Anshul Jain

Updated: 29-03-2024

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A person who is under the age of majority is considered a minor. Puberty and the majority are thought to have been reached by the time a person reaches the age of 15. However, the Indian Majority Act of 1875 currently governs Muslims in India. except marriage, divorce, and Mehr.

In Javeriya Fatma & Anr. v. State of UP & Ors, 2024, A father filed a writ case, but the Allahabad High Court denied it, ruling that the mother's mother should have custody of a Muslim girl child who has not reached puberty following her death. A writ petition for the minor daughter's release from the "illegal" care of her maternal grandmother was submitted, but it was dismissed by the Bench.

Citing Sections 352 and 353 found in Part-B of Chapter XVIII of the Mulla Principles of Mahomedan Law, the Court noted that it was clearly indicating that, in the event that the mother is unable to care for her children, the female relatives will take custody of the child(ren) in a certain order, with the mother's mother exhibiting the greatest degree of custody for a male child until he reaches the age of seven and for a female child until she reaches puberty.

Judge Yogendra Kumar Srivastava's Single Bench further noted, In doing so, the child's welfare would be the paramount consideration, and the High Court's role in assessing such instances would have to be on the touchstone of principles of parens patriae jurisdiction...The minor child's custody would normally be the subject of a court's discretionary jurisdiction, and habeas corpus proceedings would not normally be appropriate to investigate or justify this aspect of the decision. As an extraordinary remedy, the royal writ of habeas corpus must be granted while taking the specific facts of each case into account.

The defendants, according to the petitioner, who claimed to be the girl’s father, were detaining the infant, who was allegedly seven months old, against her will. It was argued in the petition that once her mother passed away, the child was given to her parents. But the grandparents supposedly refused to allow her to return, which is why the petition was filed. Declaring that the child's welfare was the primary consideration when deciding custody issues, the Court said that Section 17 of the Guardians and Wards Act, 1890 required the Court to choose a guardian by the laws that the minor was subject to.

Concerning Mulla Principles of Mahomedan Law, Part-B, Sections 352 and 353, the Court noted that it was "unmistakably indicative that the mother would be entitled to the custody (hizanat) of a male child until he reaches the age of seven, and her female child until puberty, and in the event that the mother is unable to raise them, the custody of a boy under the age of seven years and of a girl who has not attained puberty, would belong to the female relatives in a specified order, with the mother's mother being shown first."

The Court declared that the parties' rights in this particular instance are to be governed by the personal law and that the provisions of the personal law shall be applied in a manner that is consistent with the provisions of the GWA about the custody issue.

The Court clarified that, depending on the circumstances, the remedy in child custody cases was typically provided by the applicable statutory or personal laws. A writ of habeas corpus would only be granted in situations that supported the Court's use of Article 226's extraordinary discretionary jurisdiction, which is limited to situations in which it can be shown that a minor child's detention is unlawful or unsupported by any legal authority.

As per the Court's ruling, the minor girl child's custody with her maternal grandmother following her mother's death would seem to be lawful given the requirements of the GWA and the relevant personal law. The Bench concluded that as there was no evidence of improper custody, the petition of habeas corpus could not be entertained. Consequently, the petition was dismissed by the High Court.

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