Rajasthan High Court disqualified a mother from custody after she neglected her child and entered a second marriage, granting guardianship to the paternal grandfather for the child’s welfare.
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JAIPUR: In a landmark ruling, the Rajasthan High Court has declared a mother’s custody of her minor son illegal, holding that her prolonged neglect and contracting a second marriage while the first was still subsisting disqualified her under Mohammedan Law. The judgment, delivered by a Division Bench of Justice Manoj Kumar Garg and Justice Ravi Chirania, underscores the principle that while the mother is generally the preferred custodian of a minor child, the paramount consideration remains the welfare of the child.
Background of the Case
The case arose from a habeas corpus petition filed by Rahisuddin Khan, the paternal grandfather of minor child Jakwan Khan @ Rakan.
- The child’s parents, Rizwan Khan and Sehra Khan, were married in 2006, and the child was born in 2012.
- In 2016, Sehra allegedly left the matrimonial home, leaving the child in the grandfather’s care.
- On May 21, 2018, she contracted a second marriage with Mohammed Ujair Ansari in Mumbai, despite her first marriage with Rizwan still being valid.
- The grandfather cared for the child until May 30, 2025, when the mother allegedly took the child away against his will, prompting him to approach the High Court.
Arguments Before the Court
Petitioner’s Submissions:
- Counsel Mr. C.P. Soni argued that under Section 354 of Mulla’s Principles of Mahomedan Law, the mother stood disqualified from custody.
- Grounds:
- She married a “stranger” outside prohibited degrees.
- She had abandoned and neglected her child for over seven years.
- Evidence:
- A nikahnama of the second marriage.
- A complaint by the mother’s own brother challenging the marriage.
- A handwritten letter by the mother to the Mumbai police admitting her second marriage was unlawful.
Respondent’s Submissions:
- Counsel Mr. Manish Vyas contested the maintainability of the habeas corpus petition, suggesting the Guardians and Wards Act, 1890, as the proper forum.
- The mother claimed cruelty and that her first husband had pronounced “triple talaq.”
- She admitted the second marriage but asserted it was dissolved through a khulanama in December 2022, restoring her custody rights.
Also Read: Child Custody Laws in India: Legal Rights of Parents| Explained
Court’s Analysis
The Court reaffirmed that habeas corpus is maintainable in custody disputes, citing Tejaswini Gaud v. Shekhar Tewari, where the Supreme Court held that custody can be restored through writ jurisdiction when personal law disqualifies a custodian.
The Bench observed that Sehra’s conduct showed:
- Complete neglect of the child from 2018 to 2025.
- Lack of credibility, as she initially denied her second marriage and later produced a suspicious khulanama.
- Her financial dependence on her brothers contrasted with the grandfather’s financial stability.
The Court concluded:
“Any litigant or party who approaches the Court with unclean hands deserves no sympathy and leniency.”
After interacting with the child in-camera, the Court found the grandfather had provided a stable, nurturing environment for seven years, and therefore the child’s welfare would be best served under his care.
Final Directions:
The Court allowed the habeas corpus petition and ordered:
- The child’s custody should be handed over immediately to the paternal grandfather.
- The grandfather must ensure high-quality education and create a fixed deposit of ₹15 lakh in the child’s name.
- The father is restrained from taking the child out of India until he turns 18.
- The mother is granted visitation rights every alternate month.
- The mother is barred from disturbing the peaceful custody of the grandfather.
Also Read: Bombay High Court Slams Judge For Denying Urgent Hearing in Child’s Surgery Custody Case
Case Title:
Rahisuddin Khan Versus The State Of Rajasthan & Anr.
D.B. Habeas Corpus Petition No. 249/2025
Read Judgment: