Latest news with #ShaileshPBrahme
News18
5 days ago
- News18
‘Child's Welfare Overrides Personal Law': Bombay High Court Grants Custody Of 9-Yr-Old To Mother
The HC prioritised the best interests of the boy over Muslim personal law, granting custody to his mother and reinforcing a child-centric interpretation of guardianship statutes In a significant judgment on July 21, the Bombay High Court's Aurangabad bench reaffirmed the primacy of a child's welfare in custody battles, holding that personal laws cannot override the principle of best interest. The case involved a nine-year-old boy whose custody was earlier granted to his father by a family court in Nilanga, Latur, on the grounds that under Muslim personal law, custody of a male child after the age of seven lies with the father. The mother challenged this order, contending that the decision was neither in the child's emotional interest nor supported by material circumstances. Justice Shailesh P Brahme, deciding the appeal, observed that while personal laws offer general guidance on guardianship, the statutory mandate under Section 17 of the Guardians and Wards Act, 1890, requires that the welfare of the child be treated as paramount. The court held that the father's legal entitlement under Muslim personal law could not be the sole deciding factor, particularly when the child had clearly expressed his desire to continue living with his mother, with whom he had developed a strong emotional bond over the years. A significant factor in the High Court's reasoning was the personal interaction between the judge and the child, who was nearly ten years old at the time. The judge recorded that the child was intelligent, emotionally aware, and had clearly communicated his wish to remain with his mother. The boy reportedly described his father and paternal relatives as strangers, showing discomfort and unfamiliarity with them. The court emphasised that the child's preference, especially at this age, deserved considerable weight in a guardianship proceeding. Further, the court noted that the mother ran a small business and had been consistently supporting the child financially and emotionally. In contrast, the father had failed to establish a reliable income or the presence of a supportive caregiving structure at his residence. The absence of a female guardian in the father's household was also taken into account, as it could affect the child's comfort and care. Though the mother had previously not complied with certain interim orders of the family court, including failing to facilitate visitation on a few occasions, the High Court held that such lapses could not be treated as disqualifications when deciding the larger issue of custody. The court clarified that the welfare of the child must remain central, and should not be overshadowed by procedural defaults or used as punitive measures against either parent. The court also took a dim view of the manner in which the family court had conducted the proceedings. The appellant-mother, who was the primary caregiver, was not afforded an adequate opportunity to present her case, and the decision was largely driven by a mechanical application of religious customs rather than a holistic evaluation of the child's needs. Moreover, the father was unable to produce concrete evidence of neglect or harm while the child was in the mother's custody. Referring to precedents such as Gaurav Nagpal v Sumedha Nagpal and Gayatri Bajaj v Jiten Bhalla, the court reiterated that custody disputes must not be settled solely on the basis of legal rights of parents under personal law but must take into account the child's mental, emotional, and developmental needs. Accordingly, the High Court set aside the family court's order and restored the custody of the child to the mother. It granted the father structured visitation rights, including a week during long school vacations and one day a month for supervised meetings. The court directed that all such visits be conducted in a manner that does not disturb the child's schooling, mental peace, or daily routine. Get breaking news, in-depth analysis, and expert perspectives on everything from politics to crime and society. Stay informed with the latest India news only on News18. Download the News18 App to stay updated! tags : Bombay High Court child custody muslim personal law view comments First Published: Disclaimer: Comments reflect users' views, not News18's. Please keep discussions respectful and constructive. Abusive, defamatory, or illegal comments will be removed. News18 may disable any comment at its discretion. By posting, you agree to our Terms of Use and Privacy Policy.
Hindustan Times
5 days ago
- Hindustan Times
Courts holds child's welfare more important than father's legal entitlement
MUMBAI: The Bombay high court on Monday struck down a 2023 family court order directing a woman from Bidar, Karnataka to hand over the custody of her 9-year-old son to her estranged husband. A single-judge bench of justice Shailesh P Brahme noted that under Muslim personal law, the father was entitled to custody after a child turned seven, but the court held that the boy's welfare was most important and he would not be able to thrive in an environment where his own father felt like a stranger. Courts holds child's welfare more important than father's legal entitlement The couple had gotten married in 2010, and had a child in 2015. However, by June 2020, the woman alleged that her husband was ill treating her and left him to live with her parents in Bihar. A year later the husband approached the Nilanga district court for custody of the child, claiming that the wife was living with another man and neglecting her son's health and education. The woman refuted the claims and said that she had suffered dowry related harassment. She added that she was running a clothing business and independently providing for her child. However, in December 2023, the district judge granted the child's custody to his father and gave the woman visitation rights. She then appealed at the Bombay high court in 2024, and a series of orders were passed between March 2024 and October 2024, which temporarily placed the child in his mother's custody and gave the man visitation rights. When the woman failed to comply with the court orders and refused the man to visit the son, citing illness and other reasons, the court initiated contempt proceedings against her. On May 30, the court finally interacted with the minor, and saw that the boy did not want to live with his father. Advocate Mahesh Kale, representing the woman, further justified that the woman should have the child's custody by telling the court that while the man had no fixed income, the woman ran a business of her own. Advocate Madhaveshwari Mhase, representing the husband, said that as per Muslim personal law, the father is the natural guardian of a child after he turns seven. He added that the wife had left the husband without any justification and claimed that the documents concerning her income had several discrepancies. The court finally set aside the earlier order and granted custody of the body to his mother along with some conditions including visitation rights of the man. The court noted the Muslim personal law but cited earlier Supreme Court judgements and held that the minor would be more comfortable and safe with his mother. The court added that the minor's emotional attachment, comfort, and preference to stay with his mother was most important. The court added that the child's stability and security were essential to his development, and said that despite the law favouring the man, the court's decision was based on the minor's contentment, health, and favourable surroundings. 'I do not find that the interest of the minor is better secured by handing his custody to the father,' the court said and added that neither had the man shown evidence of having a better financial status than the woman, nor was there a female member present in his house.
