Syed Hayath Basha vs State Of Kerala And Ors

M.R. Anitha, J

This writ petition has been filed by the petitioner, father of the alleged detenue aged 2¾ years.

According to the petitioner, he had married the daughter of respondents 4 and 5 in the year 2017 and in that wedlock, a girl child was born on

2.3.2018. But the wife of the petitioner died on 4.6.2019 out of some disease. On the next day, the child was taken away illegally and forcefully by

respondents 4 to 6 who are the father-in-law, mother-in-law and the brother-in-law respectively. So according to the petitioner, the minor child is in the

illegal custody of respondents 4 to 6. Hence this petition has been filed seeking for production of the minor child from the illegal detention of

respondents 4 to 6 and to hand over the custody of the child to the petitioner, father of the detenue.

Notice was issued to the respondents. The learned senior Government Pleader appeared on behalf of respondents 1 to 3. Service of respondents 4

to 6 was effected through paper publication. There was no appearance for them. Heard the learned counsel for the petitioner and the learned Senior

Government Pleader.

Petitioner, father of minor child, approached this Court seeking for a direction to respondents 1 to 3 to produce the minor daughter from the alleged

illegal detention of respondents 4 to 6. The mother of child is no more. Admittedly respondents 4 to 6 are the father-in-law, mother-in-law and brother-

in-law respectively. Parties are also governed by the Mahomedan Law. Chapter XVIII of Mulla on Principles of Mahomedan Law which deals with

Guardianship of person and property is relevant in this context to be looked into. Sec.349 provides that all applications for appointment of a guardian of

the person or property or both are to be made under the Guardians and Wards Act, 1890. Sec.353 which deals with right to female relations in default

of mother, is relevant in this context to be extracted and it reads as follows :-

“S.353 - Right to female relations in default of mother- Failing the mother, the custody of a boy under the age of seven years, and of a girl who has

not attained puberty, belongs to the following female relatives in the order given below :

(1) mother's mother, how highsoever;

(2) father's mother, how highsoever;

(3) full sister; …...................â€​

So as per the Mahomedan Law, in the absence of mother custody of the boy under the age of seven years and of a girl who has not attained

puberty, preference is to the mother's mother. 5Th respondent herein is the mother's mother of the minor child of the petitioner. Legally the 5th

respondent is entitled for the custody of the minor girl in the absence of her mother. So it cannot be found that the minor daughter of the petitioner

who is only two years and 10 months is under the illegal custody of the 5th respondent. So, we do not find any reason to entertain this writ petition

filed by the father of the minor girl. It is open for the petitioner to move the appropriate Forum for redressal, if at all he needs custody or visitation

rights of the minor child in accordance with law.