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Synopsis

While observing that the mother is entitled to the custody (Hizanat) of her Muslim male child until he has completed the age of seven years and of her Muslim female child until she has attained puberty, the Allahabad High Court recently directed custody transfer of a Muslim woman's minor son to her. 

The bench of Justice Karunesh Singh Pawar passed the order in a habeas corpus petition moved by one Rehana seeking direction to recover and produce her 3 years and 7 months son Takbeer Khan. Her son was in the custody of her husband and allegedly he and his family were not properly following the court's earlier order granting visitation rights to Rehana. 

Rehana's counsel informed the court that she and her husband got married in 2017, however, after a short while, he, being drunk, started beating her. Out of wedlock, one child was born in 2020 to the couple. Due to atrocities committed the husband, Rehana returned to her parents' house in 2021. 

A case under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act was also registered in 2017 in which the husband had remained in jail for almost a year and ultimately was released on bail in 2019.

The counsel for Rihana argued that the couple's son had been illegally detained by her husband who was a drunkard and an accused in a rape case, therefore, considering the overall interest of the son, it will not be safe to leave the child in his custody. 

The high court said that its primary consideration would be to protect and watch for the rights of the minor child and not the rights of the respective parties such as compromise/divorce etc in the proceedings before 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," noted the single judge bench while referring to the high court's division bench judgment in Amal Irfa vs. State of U.P. & 2 others (2014).

Therefore, while pointing out that the husband was an illiterate, careless and rigid kind of person having illicit relationship with other woman and used to remain under the influence of alcohol, the high court, keeping in view the law laid down by the Supreme Court in the case of Nil Ratan Kundu and another versus Abhijit Kundu (2008) that character of the proposed guardian is required to be considered to determine the suitability of the spouse to have custody of the minor child, granted the child's custody to Rihana. 

However, the bench made it clear that it passed the present order, considering the emergent need to intervene and looking to the welfare and safeguarding in the interest of the child, and it had not adjudicated the rights of the parties to have the child's custody.

Case Title: Takbeer Khan (Minor)Thru. His Mother Rehana v. State Of U.P. Thru. Prin. Secy. Home Lucknow And 3 Others