What basic principles the court should follow while deciding child custody dispute?

Principles governing custody of minor children

53. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict Rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.

55. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.

[Emphasis supplied]

14. This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupam Tandon and Anr. MANU/SC/1013/2010 : 2010:INSC:836 : (2010) 14 SCC 274, this Court held as under:

19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

16. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference can be made to Rohith Thammana Gowda v. State of Karnataka and ors.' case (supra). It was held as under:

13. We have stated earlier that the question 'what is the wish/desire of the child' can be ascertained through interaction, but then, the question as to 'what would be the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1345 of 2024.

Decided On: 04.03.2024

Shazia Aman Khan and Ors. Vs. The State of Orissa and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation:- MANU/SC/0160/2024.

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Whether a party can seek modification of child custody order in absence of change of circumstances?

It is contended by the appellant that all custody orders, by their very nature, are temporary and that therefore, they are capable of being modified.

15. We have no doubt that custody orders are only temporary in nature, capable of being modified at any time. But there is a procedure to be followed for modification. Whenever a petition under the Guardians and Wards Act is disposed of finally, the same puts a seal on all questions that arose up to that date. But if there are subsequent developments or changes, which made one party eligible and the other ineligible for custody or guardianship, a fresh main petition may be maintainable. In such an event, the final order passed in the first main petition cannot be treated as res judicata, since the question relating to the interest and welfare of the children is always in a state of flux, depending upon the variation in parameters. Let us take a hypothetical case. If after the disposal of a petition under the Guardians and Wards Act, one of the parents had suffered a disqualification or had undergone some kind of a change in his or her financial or family or mental status, the same would give rise to a fresh cause of action for filing a fresh Original Petition. But it will not give a right to one of the parties to seek a modification of the order passed in the main petition by filing an interlocutory application in the disposed of case.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

F.C.A. No. 189 of 2017

Decided On: 20.04.2018

Ahmed Mohiuddin  Vs. Shabana Yasmeen

Hon'ble Judges/Coram:

V. Ramasubramanian and N. Balayogi, JJ.

Citation: AIR 2018 Hyderabad 150

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Whether concept of forum convenience is applicable to wardship jurisdiction of court?

 We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. ...

66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case [MANU/SC/0810/1998 : 1998(1) SCC 112], in relation to non-convention countries is that the

Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Court's overriding consideration must be the child's welfare.

4. In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings Under Order VII Rule 11 of the Code of Civil Procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2291 of 2018 (Arising out of SLP (C) No. 3090 of 2018)

Decided On: 20.02.2018

Jasmeet Kaur Vs. Navtej Singh

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Citation: 2018(5) MHLJ 584

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Whether working mother can be denied custody of child born through surrogacy?

In our view, the professional and social obligations and activities of
the mother need not necessarily have an adverse impact on the upbringing
and safety of the minor child. In today‟s day and age, women are actively
pursuing their professions and avocations. They are also socializing as their
peers, friends, family and colleagues. That does not mean that they are
necessarily failing in performance of their maternal obligations. In fact,
working women are, by and large, having to put in extra time and effort to
keep both ends up, and they are doing it successfully. The child is an infant.
At this age, the child has little understanding of the actions and conduct of
the parents, particularly, those acts and conduct which take place outside the
child‟s environment.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 01.05.2018
W.P.(CRL) 357/2018

KIRAN LOHIA  Vs THE STATE GOVT OF NCT OF DELHI & ORS 
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S.TEJI

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Whether court should decide issue of custody/visitation rights of minor children on basis of consent of parties?

Thus, it follows that the issue of custody of minor children cannot be decided by the Courts dealing with Petitions under the said Act or Petitions dealing with custody/visitation rights of children only on the basis of consensus or consent of the parties. Even under Rule 3 of Order XXIII of the Civil Procedure Code, 1908, a compromise can be recorded provided it is otherwise legal and is not against the public policy. In a case where contesting parties to a Petition under the said Act or under any other Enactment place compromise on record dealing with custody and visitation rights in relation to minors, the Court cannot the accept compromise mechanically. Before accepting the compromise and permitting parties to act upon the compromise, the Court has to apply its mind to the well settled law. What is paramount is what is conducive to the welfare of the children. Therefore, it is the duty of the Court to consider whether the compromise is for the welfare of the children. As stated earlier, the consent of the parties and even the personal law dealing with the issue of custody of children cannot and must not supersede paramount considerations laid down under Section 17 of the said Act. The Court has to be very cautious especially when parties by consent agree to disturb the custody of the children.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 76 of 2016

Decided On: 08.12.2016

Appellants: "A"

Vs.

Respondent: "B"

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.

Citation: 2017(6) MHLJ 134

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Whether court will follow principle of welfare of child for deciding custody dispute even if there is order of foreign court?

 The Appellant has assailed the aforesaid order inter alia on the ground that in the present scenario, the paramount interests and welfare of the daughter, Nethra, who is presently over seven years of age, is to remain in custody of her mother, especially because she suffers from a cardiac disorder and that she would face immense physical and psychological harm if repatriated to the custody of the father in England in light of the alleged physical, verbal and mental abuse meted out by him. The Appellant has also contended that the UK Court does not have intimate contact with Nethra merely because she has acquired the citizenship of the UK in December, 2012. The daughter has her deep roots in India as she was born here in Delhi and has retained her Indian citizenship. She has been schooling here for the past 12 (twelve) months and has spent equal time in both the countries out of her first six years. Further, Nethra has her grandparents, family and relatives here in India, unlike in the UK where she lived in a nuclear family of the three (father, mother and herself) with no extended family and friends. Thus, it is the Indian Courts which have the intimate contact with the minor and including the jurisdiction to decide the matter in issue. Furthermore, the Respondent No. 2 did not initiate any action for initial six months even after knowing that the Appellant was unwilling to return along with her daughter and until he was slapped with a notice regarding complaint filed by the Appellant before the Women Cell at Delhi in December 2015, relating to violence inflicted by him. As a counter blast to that notice the Respondent No. 2 rushed to the UK Court and then filed writ petition in the Delhi High Court to pressurize the Appellant to withdraw the allegations regarding violence inflicted by him.

 We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. We may usefully refer to the decision in the case of Dhanwanti Joshi v. Madhav Unde MANU/SC/0810/1998 : (1998) 1 SCC 112. In Paragraphs 28 to 30, 32 and 33 of the reported decision, the Court observed thus:

28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee. In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration". This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in J v. C. This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v, Khamis)

 In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to. a central authority. Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment. Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985.

33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L. As recently as 1996-1997, it has been held in P (A minor) (Child Abduction: Non-Convention Country), by Ward, L.J. [1996 Current Law Year Book, pp. 165-166] that in deciding whether to order the return of a child who has been-abducted from his or her country of habitual residence--which was not a party to the Hague Convention, 1980,-the courts' overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non-Convention Country) [Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13]. This answers the contention relating to removal of the child from USA.

The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on "Civil Aspects of international Child Abduction". As regards the non-convention countries, the law is that the Court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign Court as only a factor to be taken into consideration, unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare. In exercise of summary jurisdiction, the Court must be satisfied and of the opinion that the proceeding instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots here and further that it will be in the child's welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the Court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign Court by directing return of the child. Be it noted that in exceptional cases the Court can still refuse to issue direction to return the child to the native state and more particularly inspite of a pre-existing order of the foreign Court in that behalf, if it is satisfied that the child's return may expose him to a grave risk of harm. This means that the Courts in India, within whose jurisdiction the minor has been brought must "ordinarily consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign Court if any as only one of the factors and not get fixated therewith. In either situation-be it a summary inquiry or an elaborate inquiry-the welfare of the child is of paramount consideration. Thus, while examining the issue the Courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. We are in respectful agreement with the aforementioned exposition.

We once again reiterate that the exposition in the case of Dhanwanti Joshi (supra) is a good law and has been quoted with approval by a three-judge bench of this Court in V. Ravi Chandran (supra). We approve the view taken in Dhanwanti Joshi (supra), inter alia in paragraph 33 that so far as non-convention countries are concerned, the law is that the Court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education,-for these are all acts which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 972 of 2017 (Arising out of SLP (Crl.) No. 5751 of 2016)

Decided On: 03.07.2017

 Nithya Anand Raghavan Vs. State of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Dipak Misra and A.M. Khanwilkar and Mohan M. Shantanagoudar, JJ.

Citation:(2017) 8 SCC 454

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Under which circumstances court can deny custody of the child to the mother?

The net result of foregoing discussions goes to show

that Ms.Janhavi was found to be hurt and injured on 28th January

2017 and 18th February 2017 when her medical examination was

done by the competent Medical Officer.   It is averment of her

father   that   the   respondent­mother   is   the   cause   behind   those

wounds.  There is duly sworn testimony to this effect on record.

As against this, it is the contention of the respondent­mother that

Ms.Janhavi was not in her custody on those two dates and she has

not wounded Ms.Janhavi.  Be that as it may, but the case in hand

appears   to   be   a   clear   case   of   a   child   abuse.     I   have   already

mentioned   that   welfare   of   a   child   is   paramount   consideration

while deciding the issue regarding the custody of a minor child.  In

the case in hand, Ms.Janhavi is seen to have been traumatized and

physically injured not once but on two occasions in the process of

giving access.   Report of her psychological evaluation done by a

competent disinterested Child Psychologist will give some clue, as

to who was the author of wounds suffered by Ms.Janhavi and the

reason of her apprehension and reluctance to join company of her

mother.  Ms.Janhavi, since her birth, is undoubtedly in custody of

her father­the petitioner.   As such, looking to the aspect of her

safety and wellbeing, she needs to be continued in his custody till

her psychological evaluation by the expert Child Psychologist for

ascertaining her behavioral issues and issue of a child abuse.  The

respondent­mother is objecting appointment of Child Psychologists

from the list given by the petitioner­father.  Her learned Advocate

states that by tomorrow, he will submit another list of expert Child

Psychologists for consideration of this Court.   Keeping in mind

welfare of minor female child Ms.Janhavi, I proceed to pass the

following order as an interim measure :

(i) Until   further   order,   impugned   order   dated   25th  April

2017 passed by the learned Family Court, Mumbai so far

as   relates   to   granting   access   of   Ms.Janhavi   to   the

respondent/mother for the period from 29th May 2017 to

3 rd June 2017 is stayed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.5700 OF 2017

Anirudha Herwadkar V/s. Namita Herwadkar 

CORAM : A.M.BADAR J.

DATED : 29th May 2017.

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When magistrate should give interim custody of child relying on affidavit?

In the present case, it is specifically averred in the application filed under section 12 of the P.W.D.V. Act that while the opposite party was in deep sleep, the petitioner got control of the child forcibly as she was in a sleeping state and went out of the hotel very politely and in a casual manner so that nobody in the hotel would ever smell/suspect his foul play and criminal act. The CCTV Camera footage of the hotel according to the opposite party confirms her averments that the petitioner had parted with the sleeping child around 7.40 a.m. An FIR has also been lodged under section 363 of the Indian Penal Code against the petitioner. Whether the criminal proceeding against the petitioner who is the father and natural guardian of the girl child for an offence of kidnapping is maintainable or not is a complete different matter but it can be said that on the basis of the averments made in the application supported by affidavit coupled with the domestic incident report which was called for by the Magistrate, it prima facie appears that the petitioner has committed an act of domestic violence on the opposite party and the manner in which the girl child of less than five years was allegedly separated from her mother, I am of the view that considering the welfare of the child, the learned Magistrate has rightly passed the ex parte interim order of granting interim custody of the girl child in favour of the opposite party. The petitioner is at liberty to establish before the Magistrate at appropriate stage that the psychological disorder of the opposite party, if any, is of such a nature that it would be harmful for the girl child to stay in the company of the opposite party. The Magistrate can duly consider the same and give his findings thereon at the time disposal of the application under sections 25(2) and 12 of the P.W.D.V. Act filed by the petitioner and the opposite party respectively.

In the High Court of Orissa at Cuttack

(Before S.K. Sahoo, J.)

Vinay Gupta 

v.

Saveri Nayak 

CRLREV No. 635 of 2016

Decided on November 28, 2016

Citation:2016 SCC OnLine Ori 862

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What factors are to be considered by court while deciding child custody dispute?

In a case of custody of a minor, the dominant factor for consideration before the Court is the 'welfare' of the child which cannot be measured by money or by physical comfort alone. The word 'welfare' must be taken in its widest sense. The moral and religious 'welfare' of the child as well as his physical well being and the tie of affection have not to be disregarded.

In Gaurav Nagpal vs. Sumedha Nagpal, 2009 All India Matrimonial Law Reporter 925 holding that the paramount consideration is welfare of the child and not right of parents under a statute, the law enunciated by the Apex Court was summed up as under:-

(1) Grant of custody of minor child by court--

Though the provisions of the special statutes which govern the right of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.

(2) Father is natural guardian, but for custody of child paramount consideration is as to what is conducive to welfare of minor.

(3) When conflicting demands are made by parents, court then should not give emphasis on what the parties say - Court has to exercise a jurisdiction which is aimed at welfare of minor.

(4) Children are not mere chattels nor are they toys for their parents.

(5) Even if father loved the children and was not undesirable person would not necessarily lead to conclusion that welfare of children would be better promoted by granting custody of children to father.

(6) In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship."

Punjab-Haryana High Court

Kajal vs Rajesh Rana on 10 February, 2015

Citation;AIR2016(NOC)175 P&H

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Whether Magistrate can issue search warrant U/S 97 of crpc for production of child from custody of father?

Looking into the factual background of the case, I find that the petitioner/father removed the child from the custody of the O.P./mother by using physical-force and that the child was a suckling baby of a tender age of 18 1/2 months only. This act on the part of the father of placing the child beyond the reach of the mother, in such circumstances tantamount to confinement of the child giving rise to an offence. There is no scope for any controversy to accept the proposition that it is the subjective satisfaction of the Magistrate to invoke the power under Section 97 of the Court.

 It is needless to say that where the question of custody of the minor is involved the type of remedy proceeded with by an applicant whether by way of an application under the Guardians and Wards Act, or by way of an application under Section 97, Cr.P.C. or by way of a writ of habeas corpus is not relevant. In all such situations, the paramount consideration is the welfare of the minor. Therefore, when the petitioner/father had forcibly removed his child of 18 1/2 months from custody of his mother and the mother has filed application under Section 97 of the Criminal Procedure Code and the ingredients of such section were satisfied, the mother was entitled to the speedy remedy available to her under the law because of the tender age of the child and the exigency of the situation that demanded restoration of the custody of the child to the mother at the earliest possible moment. The mother cannot be denied relief in summary proceedings taken by her and it will be unjust and against the welfare of the child also to ask her to take recourse to the relevant provisions available under the Guardians and Wards Act. Therefore, it is apparent that the Learned Chief Judicial Magistrate rightly exercised jurisdiction vested upon him and no fault can be found with such orders passed by him.

In this context, I think it appropriate to mention that the Hon'ble Supreme Court in the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, reported in MANU/SC/0314/1981 : AIR 1982 SC 792 : 1982 Cr LJ. 580 has held that -"It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party....."

IN THE HIGH COURT OF CALCUTTA

C.R.R. No. 2984 of 2014

Decided On: 20.01.2015

Appellants: Amber Majumdar
Vs.
Respondent: The State of West Bengal and Ors.

Hon'ble Judges/Coram:Shib Sadhan Sadhu, J.

 Citation: 2015CriLJ1510

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Whether Muslim father can be given visitation rights to meet his children below seven years?

  We are of the considered opinion that the impugned

directions issued granting limited visitation rights to the father

during holidays is only in the welfare of the child and that the

paramount consideration that has to weigh with the appellate court

as well as the Family Court, is the welfare of child in a case like the

instant one. The welfare of the child demands that he should get

not only the love and affection of the mother but also that he should

have the opportunity to meet and interact with his father during

limited periods of holidays so that he also enjoys the care and love


of the father. Otherwise, the growth of the child, who is now aged

only hardly four years old (born on 25.12.2009) will not get a well

balanced and harmonious exposure to the love and care of both his

father and mother. Merely because the personal law gives custody

of the minor son until he completes the age of 7 years in favour of

the mother, does not lead to a situation of complete obliteration of

the necessity of the child to get interaction and exposure with his

father and it cannot be interpreted that the provision of       the

Mohammedan Law should be hyper technically interpreted and

enforced leading to a situation whereby it is in derogation and

flagrant violation of the aspect, which demands that the paramount

consideration should be the welfare of the minor child. As clearly

held in Mumtaz Begum v. Mubarak Hussain reported in AIR 1986

M.P. 221 that even if the mother must have custody of the child of

the tender age, until the age of 7 years, the father must not be

denied access to the child. Accordingly, we are of the considered

opinion that the court below has not committed any illegality in

issuing the impugned direction in the impugned judgment that the

father should be given limited visitation rights and consequential

interim custody of the minor boy during Onam, X'mas and Summer.
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                 PRESENT:

                           MR.JUSTICE V.K.MOHANAN
                                                        &
                      MR. JUSTICE ALEXANDER THOMAS

            THURSDAY, THE 6TH DAY OF NOVEMBER 2014
                                        Mat.Appeal.No. 517 of 2014
                                          ------------------------------

                       OP(G&W) NO.2192/2013 OF FAMILY COURT, ATTINGAL.
                                               
            BUSHARA, AGED 26 YEAR


    Citation;AIR 2015  kerala 21

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