Patna High Court
Sana AzimversusMd. Fashi-Ul-Haque
- Decided
- Disposal
- DISPOSED
Holding
The appellate court held that the Family Court failed to comply with Section 17(5) of the Guardians and Wards Act, 1890, by not ascertaining the minor’s preference and by issuing an ambiguous order, and therefore set aside the order and remanded the case for fresh consideration.
Summary
The mother, maternal grandparents and the father disputed custody of their minor son, Daniyal Azimul Haque, born in 2019. The father obtained guardianship under Section 25 of the Guardians and Wards Act, 1890, and the Family Court appointed him as guardian in April 2025. The appellants appealed, arguing procedural lapses, failure to frame issues, and non‑compliance with Section 17(5) which requires the court to consider the child’s intelligent preference and not appoint a guardian against his will. The High Court held that the lower court erred by not ascertaining the child’s preference, by not framing issues under Order XIV Rule 1(5), and by rendering an ambiguous order. Consequently, the appellate court set aside the impugned order and remanded the matter for fresh consideration from the stage of issue‑framing, directing a decision within six months. The appeal was allowed.
Issues considered
- Whether the Family Court complied with the procedural requirements of Order IX Rule 6(a) and Order XIV Rule 1(5) of the CPC in a guardianship proceeding.
- Whether the court correctly applied Section 17 of the Guardians and Wards Act, 1890, particularly the requirement to consider the minor’s intelligent preference and not appoint a guardian against his will.
- Whether Mohammedan personal law provisions (Section 352 and 354) affect the custody rights of the mother in this case.
Legislation cited
- Guardians and Wards Act, 1890 — s. 17, 25, 47
Subjects
- guardianship
- custody
- minor's preference
- Muslim personal law
- Section 17 Guardians and Wards Act
- procedural irregularities
- appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.808 of 2025
======================================================
1. Sana Azim, female, aged about 30 years, W/o Md. Fashi-Ul-Haque, D/o
Nasir Ali, Resident of Village-Madhuka, P.O., Block-Konch, P.S.-Anti,
District-Gaya, Bihar-824116.
2. Nasir Ali, male, aged about 60 years, S/o Late Azim, Resident of Village-
Madhuka, P.O., Block-Konch, P.S.-Anti, District-Gaya, Bihar-824116.
3. Smt. Sabnam @ Shabnam Jahan, Female, aged about 56 years, W/o Nasir
Ali, Resident of Village-Madhuka, P.O., Block-Konch, P.S.-Anti, District-
Gaya, Bihar-824116.
... ... Appellant/s
Versus
Md. Fashi-Ul-Haque, Male, aged about 36 years, S/o Ekram Ul-Haque,
Resident of Mohalla- Kumhrar, P.S.-Agamkuan, Patna City, District-Patna,
Bihar-800007.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Amit Srivastava, Sr. Adv.
Mr. Girish Pandey, Adv.
Md. Basheer Faizi, Adv.
Mr. Amit Kr. Singh, Adv.
Mr. Siddharth Shankar Singh, Adv.
For the Respondent/s : Mr. Ravi Bhardwaj, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
and
HONOURABLE MR. JUSTICE VIKASH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIKASH KUMAR)
Date : 09-07-2026
Heard Sri Amit Srivastava, learned Senior Advocate,
assisted by Md. Basheer Faizi, Advocate for the appellants and Sri
Ravi Bhardwaj, learned Advocate for the respondent.
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2. The present appeal, under Section 47 of Guardians
and Wards Acts 1890 (hereinafter to be referred as Act) has been
preferred by the appellants against the Judgment and Order dated
16.04.2025, passed by the Learned Principle Judge, Family Court,
Patna in Guardianship Case No. 54 of 2021, whereby the
respondent’s application under Section 25 of the Act was allowed
and custody of the minor child, Master Daniyal Azimul Haque,
was granted in favour of the respondent.
3. In present appeal, appellant no. 1 is the mother,
appellant no. 2 is maternal grandfather and appellant no. 3 is
maternal grandmother and respondent no. 1 is the father of the
minor male child, namely Master Daniyal Azimul Haque.
4. The brief facts as per the pleadings of the respective
parties are as follows:-
The appellant no. 1 was lawfully married to the
respondent on 14.04.2018, in accordance with Sunni Muslim rites
through a Nikah Ceremony held at Ali Nagar, Anisabad, Patna and
out of the wedlock, a male child, namely Master Daniyal Azimul
Haque, was born on 07.02.2019. After sometime, bitterness arose
between the parties and since 05.06.2020, appellant no. 1 with her
son, are living separately from the respondent. And as per
respondent Father, the minor child, namely Master Daniyal Azimul
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Haque is residing with appellant no. 2 and 3 and was denied with
the visitation right. Thereafter, for the custody of minor son, the
respondent Father on 02.11.2021 has filed Guardianship Case no. -
54 of 2021 before the learned Court of Principal Judge, Family
Court, Patna.
5. From perusal of order-sheet of the proceeding of
Guardianship Case no. 54 of 2021, which forms as Annexure P/3
to the rejoinder affidavit filed by appellants, it appears that on
07.04.2022, the appellants have filed their appearance and on
14.11.2022, have filed their written submission. Thereafter, there is
no appearance by the appellants before the learned Court below in
the proceeding of Guardianship Case no. 54 of 2021. On account
of non-appearance of appellant Mother, even the two witnesses
who have been examined were discharged without cross-
examination. The learned Principal Judge, Family Court, Patna,
vide impugned order dated 16.04.2025, allowed the application
and appointed respondent Father as guardian of minor boy child
and as a consequence, has given the physical custody of the minor
child to the father, but in the interest of justice, directed both
parties to be present along with the minor boy child on 15.07.2025
at 2 P.M. so that final result of the case may be disclosed in
presence of both parties.
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6. Aggrieved by the Judgment/Order dated 16.04.2025,
the Mother and Maternal Grand Parents of the minor male boy has
preferred present appeal under the provisions of Section 47 of the
Act and contended that the learned Court below has erred in law
and fact as well
6.1- by not passing an order to the extent that the suit be
heard ex-parte in circumstances of non-appearance of appellants
on subsequent dates in terms of Order IX Rule 6 (a) of the Civil
Procedure Code.
6.2- by not framing the issues after ascertainment of
variance of parties on proposition of fact and law in terms of Order
XIV Rule (1)(5) of the Civil Procedure Code. And to substantiate
their submission, has referred the relevant part of the order-sheet
of the proceeding which forms as Annexure -P/3 to rejoinder
affidavit filed on behalf of appellants.
6.3- by not adhering to the mandatory requirement of
Section 17 of the Act, the learned Court below has appointed
respondent father as “Guardian”. By referring the provision of
Section 17 of the Act, which is reproduced hereinbelow, for the
sake of brevity-
“17. Matters to be considered by the
Court in appointing guardian
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(1)In appointing or declaring the
guardian of a minor, the Court shall, subject to the
provisions of this section, be guided by what,
consistently with the law to which the minor is
subject, appears in the circumstances to be for the
welfare of the minor.
(2)In considering what will be for the
welfare of the minor, the Court shall have regard to
the age, sex and religion of the minor, the character
and capacity of the proposed guardian and his
nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous
relations of the proposed guardian with the minor
or his property.
(3)If the minor is old enough to form
an intelligent preference, the Court may consider
that preference.
(4) Sub-Section (4) omitted by Act 3 of
1951, Section 3 and Sch.
(5)The Court shall not appoint or
declare any person to be a guardian against
his will.”
the appellants contended that :-
6.3.1. since the minor male boy is Muslim by Religion and
therefore, as per provision of Section 17(1) of the Act, in his case
the provisions of Mohammedan Law will have an application and
accordingly, as per provision of Section 352 of the Mohammedan
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Law, the Mother is entitled to the custody (hizamat) of her male
child until he has completed the age of seven years.
6.3.2. as per Subsection (4) and (5) of Section 17 of the Act,
the learned court below ought to have called the minor male child,
who is old enough to form an intelligent preference, and have
asked about his will before appointing respondent Father as
Guardian vide impugned order dated 16.04.2025.
6.4. The impugned Judgment/Order is ambiguous. On
one hand, the learned Court below has appointed respondent
Father as guardian whereas on the other hand, has directed the
appellants alongwith minor son to remain present so that final
decision may be taken. In support of their contention, the
appellants have relied upon Judgments passed by the Hon’ble
Supreme Court in the matter of:-
Athar Hussain vrs. Syed Siraj Ahmed, reported in
Manu/SC/0014/2010
Neetu vs. Rajesh Kumar, reported in
Manu/SC/0920/2025,
Asma Latif and others vs. Sabbir Ahmed and others,
reported in Manu/SC/0034/2024
Neel Ratan Kundu and others vs. Abhijeet Kundu,
reported in Manu/SC/7935/2008
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Rosy Jacob Vrs Jacob A. Chakramakkal, reported in
Manu/SC/0260/1973 and
Swarn Lata Ghosh vrs. H.K. Banerjee and others,
reported in Manu/SC/0023/1969.
7. The present appeal is contested by the respondent
Father. Counter-affidavit filed on behalf of the respondent Father
is on record. Appearing on behalf of the respondent Father, learned
counsel Sri Ravi Bhardwaj, vehemently opposed the contention
made by the appellants and submitted that they have no regard
towards the order passed by the court of law. The respondent was
given the visitation right to meet his son twice a month vide order
dated 05.12.2022, but the appellants have not allowed him to meet
his son. He has last met his son on 08.10.2023 and since October
2023, the appellants have not filed any application before the
learned Court below. The appellants did not turn up for cross-
examination of the two witnesses examined on behalf of the
respondent. As such they were discharged. It has further been
submitted that under the Muslim Law, the father is recognised as
the sole natural guardian. The right of the mother to custody is not
absolute. In provision of Section 354 of the Mohammedan Law,
outlies the condition in which the female, including the mother
looses custody rights and in support thereof has relied upon a
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Judgment passed by the Hon’ble Supreme Court on 05.04.1973,
reported in (1973) 1 SCC 840 ( Rosy Jacob vs. Jacob A.
Chakramakkal ) also relied by the appellants herein.
8. The issue for consideration by this Court is that
whether the learned Court below, while passing the impugned
order, has complied with the provisions of Section 17 of the Act or
not.
9. On careful analysis of submissions of respective
parties on fact and law, following are the findings :-
9.1. as far as contention of the appellant as regard non-
adherence of procedure under Order IX Rule 6 (a) of Civil
Procedure Code, it is clear from perusal of the order-sheet of the
Guardianship Case no- 54 of 2021, which forms as Annexure -P/3
to rejoinder affidavit, that the appellants upon issuance of notices
vide order dated 08.03.2022, have entered their appearances
through Vakalatnama and have filed their Written Statement (W.S.)
on 14.11.2022, and subsequent thereto voluntarily abstained from
the proceeding. In the circumstances of valid service of notice,
Court below to make an order that the suit be heard ex-parte and
appearance and filing of Written Statement by defendant, it is held
that the learned Court below is not required to pass an order that
the Guardianship Case be heard ex-parte for act of voluntary
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absentism by defendant/appellant. Accordingly, the contention of
the appellant is rejected.
9.2. so far as contention of the appellants as regard non-
compliance of Order XIV Rule 1(5), this Court finds that the
learned Court below has committed the procedural infirmity by not
ascertaining upon what material proposition of fact and law the
parties are at variance and thereupon ought to have proceeded to
frame and record the issues. This exercise is penultimate to passing
of Judgment/Order. The learned Court below has failed to frame
issues in terms of Order XIV Rule 1(5) of the Civil Procedure
Code and contention of the appellants in this regard is accepted.
9.3. so far as contention of the appellants as regard non-
adherence of provision of Section 17 of the Act, this Court finds
that the learned Court below has failed to comply with the
requirement of Sub-section 5 of Section 17 of the Act, which
mandates that the Court shall not appoint or declare any person to
be a guardian against his will. From bare perusal of the order-sheet
of Guardianship Case no- 54 of 2021, which forms as Annexure-
P/3 to the rejoinder filed by appellants, it is clear that no steps have
been taken by the learned Court below to ascertain the will of
minor male child before appointment of respondent Father as
guardian vide impugned order dated 16.04.2025. Since the minor
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male child was born on 07.02.2019, the Guardianship Case no- 54
of 2021 was filed on 02.11.2021, and the impugned order has been
passed on 16.04.2025. Therefore, this Court has reason to believe
that the minor child boy is old enough to form an intelligent
preference on the relevant date of impugned Judgment. The
Judgments referred by appellants and respondent are relevant
which in irrevocable terms mandates that the will of the minor
child is paramount in consideration by the Court in appointing
guardian. Further, there is no consideration as regard applicability
of Mohammedan Law by the learned Court below. Therefore, it is
held that the learned Court below has failed to adhere to the
requirement of Section 17(5) of the Act.
9.4. Lastly, the contention of the appellants as regard
ambiguity in order dated 16.04.2025, this Court find that the
impugned order is ambiguous. The learned Court below at one
hand has appointed respondent Father as guardian and on the other
hand, has directed the appellant Mother to appear alongwith her
minor son on 15.07.2025, so that final result of the case shall be
disclosed, depicts it to be ambiguous. The submission made on
behalf of the respondent Father that later part of impugned order is
related with handing over and taking over of custody of minor
child is rejected more or less to the fact that the learned Court
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below has even failed to frame and adjudicate the issue that with
whom the minor child is residing? As per respondent, he is
residing with appellant no. 2 and 3 whereas the appellants in their
written statement have stated that the minor child is residing with
appellant no. 1.
10. For the reasons stated herein above, the impugned order
dated 16.04.2025, passed in Guardianship Case no- 54 of 2021, by
learned Principal Judge, Family Court, Patna is set aside, and the
matter is remanded back for fresh consideration by learned Court
below from the stage of framing of issues.
11. During the course of hearing, it was pointed out by the
counsel for respondent Father that the appellants have no regard
for judicial order, and this Court also finds from the order-sheet
that the appellants have volunteered to abstain from proceeding.
No one is above law. Since future of the minor child is involved in
present matter, therefore, it is expected that the appellants herein
will co-operate the learned Court below in adjudication and
passing of proper and just order expeditiously within a period of
six months from the appearance of respective parties on
20.07.2026 before the learned Court of Principal Judge, Family
Court, Patna.
12. No order as to cost.
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( Vikash Kumar, J)
(Nani Tagia, J) I agree.
(Nani Tagia, J)
Ashwin/-
AFR/NAFR A.F.R.
CAV DATE 30.06.2026
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