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Father is the natural guardian under Muslim law -- HC

NEW DELHI, FEB 11: In a significant ruling, the Delhi High Court has said that the maternal grandmother is not the natural guardian of a child under Mohammedan law as long as his or her father is alive.

``Maybe that under the Mohammedan law the maternal grandmother be entitled to the custody of the minor upto a certain age but even according to Mohammedan Law, she is not the natural guardian in the presence of the father,'' a division Bench comprising Justice Devinder Gupta and Justice Mukul Mudgal has ruled.

Dismissing an appeal by mother-in-law of Suhaib Ilyasi, producer of popular television crime serial `India's Most Wanted', for the court's intervention in a single judge bench order restraining her from taking custody of his three-year-old daughter Aailya, the court said "the father alone is the natural guardian" of the child.

The court said "under the Guardian and Wards Act, the word guardian is used in a wide sense. It does not necessarily mean a guardian duly appointed or declared by the court."

Ilyasi's mother-in-law Rukma Singh, who lives with her daughter in Canada, had challenged the single judge bench order restraining her from taking forcible custody of Aailya.

The main contention of Rukma Singh, a Hindu, was that she was entitled to custody of the daughter of Ilyasi, who is a Muslim, as under Mohammedan law maternal grandmother has such a right.

Ilyasi challenged her writ on the ground that he and his wife Anju had a registered marriage in 1993 in a London Court and therefore provisions of Mohammedan Law would not be entirely applicable in this case.

The Bench, however, said the question whether personal law on the minor would or would not be applicable or as to who was entitled to have her care and custody "up to a particular age" would have to be gone into and decided upon in appropriate proceedings in a competent court of law.

The court further said that it was not dealing with the complicated questions like welfare of the minor or whether the petitioner, who did not have physical control of the child when the suit was filed, was entitled to an interim injunction.

The only question before it was protection to Ilyasi against the threatened action of his mother-in-law of removing the child from his care and custody forcibily, the court said.

The single judge bench was "perfectly justified" to restrain Rukma Singh from removing the child from Ilyasi's custody by using any force.

However, the bench had made it clear that its order would not come in the way of Rukma Singh taking appropriate legal remedy for custody of the child, the court observed.

Ilyasi's counsel Amajit Singh Chandhioke had contended that their client apprehended that his mother-in-law and sister-in-law might take Aailya to Canada.

Ilyasi's sister-in-law Rashmi Singh in March last year had lodged a complaint with a local magistrate here against Ilyasi alleging that he used to harass and torture his wife Anju for dowry.

Following the complaint, police after registering a case against the TV serial producer had arrested him. Ilyasi, who described the allegations as "false", was granted bail by the court in July last year.

Copyright © 2001 Indian Express Newspapers (Bombay) Ltd.


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