Court Quashes Family Court's Ex Parte Judgment Granting Custody of Four-Year-Old Girl to Father, Directs Fresh Hearing Ensuring Mother's Participation
In a significant judgment delivered on September 7, 2026, the Jharkhand High Court (Division Bench of Justices Sujit Narayan Prasad and Sanjay Prasad) quashed an ex parte custody order passed by the Family Court, Ranchi, involving the custody of a four-year-old minor girl named Insha Amir. The appeal was filed by the mother, Shagufta Yasmin, against the order granting custody to the father, Md. Amir Khan.
The father had instituted Original Suit (Guardianship) No. 312 of 2025 under Sections 7 and 25 of the Guardians and Wards Act, 1890, seeking custody of the minor child alleging that the child was not receiving proper care at her maternal grandfather's house. The Family Court had allowed the suit ex parte on May 19, 2026, directing the mother to hand over custody to the father within a week.
However, the mother contested the ex parte order on multiple grounds, primarily asserting that she was never properly served notice of the custody proceedings despite regularly appearing before the same court in a related maintenance case. She argued that the custody of a child below six years cannot ordinarily be entrusted to the father under settled Muslim law principles and emphasized that the welfare of the child is the paramount consideration.
After detailed scrutiny of the procedural history and merits, the High Court found that the Family Court had failed to ensure proper service of notice to the mother before proceeding ex parte, violating the principles of natural justice and the procedural mandates of the Civil Procedure Code (Order V). The Court observed that the welfare of the child cannot be determined without hearing both parents, especially in a sensitive matter like custody.
The Court held that the impugned judgment was perverse as it was passed without affording the mother an effective opportunity to participate in the proceedings. The judgment also reiterated the established Muslim law principle that a mother has preferential custody rights over a female child until puberty, subject to the welfare of the child being paramount.
Consequently, the High Court set aside the Family Court's custody order and revived the guardianship suit from the stage of notice. The mother was directed to appear within four weeks and the Family Court was instructed to issue notice to the father and decide the matter afresh on merits, keeping the child's welfare as the guiding factor. The Court further directed that if custody had already been handed over to the father, it should be restored to the mother pending fresh adjudication to avoid prejudice.
This judgment underscores the judiciary's commitment to ensuring procedural fairness in custody disputes and reinforces that the welfare of the child is the supreme consideration overriding procedural lapses or rigid application of law. It also clarifies that ex parte orders in such delicate matters should be passed only after strict compliance with procedural safeguards.
Bottom Line:
Custody of a minor child cannot be decided ex parte without providing proper opportunity to the contesting party. Welfare of the child is paramount, and procedural lapses in service of notice render an ex parte decision unsustainable.
Statutory provision(s):
Guardians and Wards Act, 1890 Sections 7, 17, 25; Civil Procedure Code, 1908 Order V; Indian Penal Code Section 498A.
Shagufta Yasmin v. Md. Amir Khan, (Jharkhand)(DB) : Law Finder Doc Id # 2974731
