- In the case of Irfan Ur Rahim Khan vs Farha Khan the Hon’ble Chhattisgarh HC has held that whenever there is a conflict between the personal law to which the minor is subject and his welfare, the latter has to prevail.
- In the instant case, the father had filed an appeal before the HC challenging the order of the lower Court which granted custody of the monir twins to their mother. The appellant had alleged that the mother was unemployed and that he being a police officer was better suited to take care of the children.
- The statements of the children were taken when they were 10 years old and they both had expressed their desire to live with their mother. The cross-examination which they were subject to showed that there was a consistency in their answers and that they were old enough to form an intelligent preference to be in the custody of the mother.
- The HC was of the opinion that under the principles of muslim law, the mother is entitled to the custody of her male child until he has attained the age of 7 years and the daughter until she had attained the age of 14 years. But an established principle of law which has to be taken into consideration is that in a proceeding for the appointment of guardian, it is not the guardianship of the minor which is of paramount consideration but the welfare of the minor.
- The Court also went on to observe that when there is a conflict between the personal law to which the minor is subject and the consideration of minor’s welfare, the latter must take precedence. Thus, where the provisions of law are in conflict with the provisions of the Guardians and Wards Act, the latter will prevail.
- The Court relied upon the judgement of the Hon’ble SC in the case of Ritika Sharan vs. Sujoy Ghosh (2020)SCC wherein it was held that a balance has to be struck in situations when parents are in conflict so as to ensure that the child has a sense of security and that the interests of the children are best served when both the parents have a presence in their upbringing.
- The HC also noted that in the case of Yashita Sahu vs State of Rajasthan (2020)SCC it was held that even after custody was given to one of the parents, the other parent must have sufficient visitation rights so as to ensure that the child does not lose social, physical and psychological touch with any of the two parents.
- Thus, in the instant case, the mother was granted custody of her children while the father was allowed visitation rights.
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