Background
The Jharkhand High Court has held that under Hanafi law, a mother has a preferential right to the custody, or Hizanat, of her female child until the child attains puberty. The Court, however, clarified that this right is subject to the welfare of the child, which remains the paramount consideration in custody disputes.
A Division Bench of Justice Sujit Narayan Prasad and Justice Sanjay Prasad was hearing an appeal against an ex parte judgment of the Additional Principal Judge, Additional Family Court-II, Ranchi, directing a mother to hand over custody of her approximately four-year-old daughter to the father.
The child was born on January 11, 2022, from the marriage between the parties, which was solemnised on September 6, 2020, according to Muslim rites and customs. The mother left the matrimonial home with the infant daughter on March 2, 2022.
The father subsequently instituted a guardianship proceeding seeking custody of the minor girl. The Family Court proceeded ex parte and, after considering the evidence produced by the father, allowed the guardianship suit and directed the mother to hand over custody of the child.
The mother challenged the order before the High Court, arguing that she had not been given an effective opportunity to participate in the proceedings.
Legal Issue
The High Court considered whether the Family Court could decide the custody of a four-year-old child through an ex parte proceeding without ensuring effective participation of the mother.
The mother submitted that there was no proper proof of service of notice and that she was regularly appearing before the same Family Court in a separate maintenance proceeding. She argued that despite her participation in those proceedings, she had not been informed about the guardianship case.
The guardianship proceedings were declared ex parte on October 13, 2025, and the final judgment was passed on May 19, 2026.
The Court also examined the mother’s preferential right of custody under Muslim personal law, particularly the Hanafi principles relating to Hizanat.
Under Hanafi law, the mother generally has a preferential right to custody of a male child until seven years of age and of a female child until puberty. However, the Court noted that this personal-law principle is not absolute because the welfare of the child remains paramount.
The Bench also considered Section 17 of the Guardians and Wards Act, 1890, which requires the Court to consider the welfare of the minor while appointing or declaring a guardian.
Court Ruling
The High Court found that the Family Court had proceeded ex parte in a hurried manner without taking adequate steps to secure the mother’s participation in the proceedings.
The Bench observed that before proceeding ex parte, the Court was required to take effective steps to ensure that the contesting party had proper notice and an opportunity to appear.
The Court found it significant that the mother was regularly participating in another maintenance proceeding before the same Family Court, including proceedings relating to recovery of maintenance arrears. Despite this, she was not informed about the guardianship proceedings concerning her minor daughter.
The High Court therefore held that the procedure followed by the Family Court had deprived the mother of an adequate opportunity to present her case in a sensitive custody dispute.
The Bench then considered the position under Muslim law. It noted that Hizanat refers to custody of a minor under Muslim law and that, under Hanafi principles, the mother has a preferential right to custody of a male child until seven years of age and of a female child until puberty.
However, the Court clarified that this preferential right is not absolute. The welfare of the child remains the overriding consideration while deciding custody.
The Court emphasised that custody cannot be determined solely by applying a personal-law rule without examining what is in the best interests of the child.
The Bench further held that the nature of a custody proceeding makes participation of both parties particularly important.
It observed that where the welfare of the child is the paramount consideration, the Court requires the perspective and evidence of both parents before making a decision. An ex parte determination may deprive the Court of relevant information necessary to reach a just and equitable conclusion.
The High Court accordingly quashed and set aside the Family Court’s judgment dated May 19, 2026.
The guardianship proceeding was revived from the stage of notice, with a direction to adjudicate the custody dispute afresh on its own merits and in accordance with law.
Implications
The judgment clarifies the position of Hanafi law on maternal custody while reaffirming that personal-law principles do not override the welfare of the child.
Under the Hanafi rule considered by the Court, the mother has a preferential right to custody of a female child until puberty. However, this does not create an unconditional or automatic right to custody. The Court must ultimately determine custody based on the child’s welfare.
The ruling also highlights the importance of procedural fairness in guardianship proceedings. A Family Court cannot casually proceed ex parte in a custody dispute without taking adequate steps to ensure that the other parent has received effective notice and an opportunity to be heard.
The judgment further reinforces the principle under Section 17 of the Guardians and Wards Act, 1890 that the welfare of the minor is the paramount consideration in guardianship and custody matters.
Importantly, the High Court did not finally decide which parent should have custody of the child. It only set aside the ex parte decision and directed the Family Court to reconsider the guardianship dispute after giving the parties an opportunity to participate.
The judgment adds clarity on the relationship between Muslim personal law, procedural fairness and the welfare principle in child custody disputes.
Case: S v. A
Court: Jharkhand High Court
Bench: Justice Sujit Narayan Prasad and Justice Sanjay Prasad
