Bench:
- JUSTICE R. BHASKARAN
- JUSTICE K.P. BALACHANDRAN
Issue:
Guardianship of the child if the mother marries another person of a different religion.
Facts:
• The Father of the child died in a motor accident. He died even before his wife gave birth to the child.
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• Thereafter the child was brought up by the mother.The boy had been with his mother since birth. He was now ten years old and studying in 5th standard at that time.
• Within two years of her husband’s death, the mother of the child converted to Islam after marrying a Muslim.
• The mother of the child received compensation in a motor accident case and from the LIC after the death of her husband. She had no other income. Her mother is a retired Principal of a college and takes interest in the welfare of the child.
• The grandmother of the child filed a petition in the District Court for guardianship of the child.
• The Family Court appointed the grandmother as guardian of the child.
• Then the mother of the child filed an appeal in Kerala HC.
Appellant's Contentions:
• The child is studying in the fifth standard very well, if his displaced at present it may affect his studies and he may not be able to get accustomed to the new environment of his grandmother.
• Mere marriage to a person of another religion is not a ground to take away custody of the child from the mother.
• Both the mother and the new husband have undergone a ceremony of conversion to Hinduism and so the child will be brought up as a Hindu.
Respondent's Arguments:
• Since the mother has married a Muslim, therefore she will not be able to bring up the child as Hindu.
• Mother has no substantial source of income.
Judgment:
• The court held that the marriage of a mother with a person of a different religion is not a ground to take away the custody of the child. Mother's affection and care cannot be substituted.
• Citing the case of Sheila v. Soli Phirozshaw (AIR 1981 Bom 175) court pointed that person's faith and conversion cannot be regarded as a disqualification for guardianship unless the guardian is capable of providing a congenial, comfortable, and happy home for the minor.
• The apprehension of the child not being brought up as Hindu is without any basis. The importance is of the child being bought up as a good human being.
• Even in a contest between father and mother for custody of a minor child, the mother is preferred. As the child has accustomed himself to the atmosphere of his mother, for the welfare of the child she will have his custody.
• Moreover, the educational background of the mother was given importance as it will help in moulding the character of the child for his better future.
• The court concluded that the welfare of the child is of utmost importance. The religion of the mother cannot be the basis for deciding guardianship of the child. Thus mother was given guardianship of the child.
