Jharkhand HC sets aside Ranchi family court’s ex-parte custody order, orders fresh hearing
SUMAN K SHRIVASTAVA Ranchi, September 9: The Jharkhand High Court has set aside an ex-parte order of the Family Court, Ranchi, directing…
SUMAN K SHRIVASTAVA
Ranchi, September 9: The Jharkhand High Court has set aside an ex-parte order of the Family Court, Ranchi, directing Shagufta Yasmin of Millat Colony, Bahu Bazar, under Lower Bazar Police Station to hand over custody of her four-year-old daughter to her husband Md. Amir Khan of Warsi Chowk, Manitola, Doranda, under Doranda Police Station.
A Division Bench of Justices Sujit Narayan Prasad and Sanjay Prasad held that a sensitive child-custody dispute could not have been decided without providing the mother an effective opportunity of hearing. The High Court revived the guardianship proceedings from the notice stage and directed the Family Court to decide the matter afresh on its merits.
Family Court had ordered custody to father
The dispute relates to the couple’s minor daughter, born in January 2022. The father had approached the Family Court seeking custody, claiming that he was the child’s natural guardian and that her welfare, care and future upbringing would be better served in his custody.
The Family Court proceeded ex parte after the mother failed to appear and subsequently directed her to hand over the child to the father within a week. The mother challenged the order before the High Court, contending that she had not been properly served notice and had not been given an opportunity to contest the case.
Mother was attending maintenance proceedings
The mother argued that she was regularly appearing before the Family Court in a separate maintenance proceeding and had even attended court during the pendency of the custody dispute, but was never informed about the guardianship case.
The High Court took note of this circumstance and observed that the guardianship proceedings had been declared ex parte without adequate and proper opportunity being afforded to the mother in a matter involving the custody of a four-year-old child.
HC finds ex-parte proceedings procedurally flawed
The Bench examined the sequence of notices and found that the case had been declared ex parte without fully following the procedure required under the Code of Civil Procedure.
The court held that before proceeding ex parte, effective steps must be taken to secure the appearance of the contesting party. In the present matter, the required procedure had not been followed in its entirety.
The High Court consequently held that the Family Court judgment suffered from perversity and could not be allowed to stand.
Child’s welfare remains paramount
The Bench emphasised that the welfare of the child is the paramount consideration in custody disputes.
It observed that custody of a minor cannot properly be adjudicated in the absence of participation by both parties because the court needs the perspective of all stakeholders before reaching a just and equitable decision.
The court also referred to the principles governing custody under Muslim law, including the mother’s preferential right to custody of young children, while making it clear that such a right is subject to the overriding consideration of the child’s welfare.
Custody to return to mother if already handed over
Setting aside the Family Court order, the High Court directed that the guardianship case be revived from the notice stage. The Family Court has been asked to issue fresh notice to the father and decide the dispute on merits as expeditiously as possible.
The High Court further directed that if the mother had already handed over custody of the child to the father pursuant to the Family Court’s order, custody should forthwith be restored to the mother.
The Bench said the direction was necessary to ensure that the mother was not prejudiced by compliance with an order that had subsequently been set aside and to protect the paramount consideration of the child’s welfare pending fresh adjudication.
The court also made it clear that the Family Court should decide the matter afresh without being influenced by observations made in the High Court order.
