Custody of a minor cannot be adjudicated ex parte without effective notice and hearing.

The appellant-mother and respondent-father were married on 06 September 2020 according to Muslim rites.

Their daughter, Insha Amir, was born on 11 January 2022.

The mother left the matrimonial home with the infant child on 02 March 2022 and thereafter the child remained in her care at the maternal side’s residence.

The father subsequently 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 on allegations of inadequate care and an unsafe environment at the maternal home.

The mother did not appear before the Family Court, and the proceedings were conducted ex parte.

The Family Court, relying upon the father’s evidence, directed the mother to hand over custody of the approximately four-year-old child to the father within one week by judgment dated 19 May 2026.

In appeal under Section 19(1) of the Family Courts Act, 1984, the mother contended that notice had not been duly served, that she had been regularly attending connected maintenance proceedings, and that the ex parte order violated natural justice.

The father maintained that notice had been served through post and newspaper publication.

1. Whether the Family Court was justified in proceeding ex parte and deciding the custody dispute without affording the mother an effective opportunity of hearing?

2. Whether the ex parte judgment directing transfer of custody of the minor girl to the father was legally sustainable in light of the procedural requirements under the Code of Civil Procedure and the paramount consideration of the child’s welfare?

3. Whether the mother’s preferential right of custody under the Muslim-law principle of *hizanat*, subject to the welfare of the child under Section 17 of the Guardians and Wards Act, 1890, required consideration before deciding custody?

The Court exercised appellate jurisdiction under Section 19(1) of the Family Courts Act, 1984, over proceedings under Sections 7 and 25 of the Guardians and Wards Act, 1890.

Under Order V of the Code of Civil Procedure, effective and legally compliant service of notice is required before a party may properly be proceeded against ex parte.

Section 17 of the Guardians and Wards Act makes the welfare of the minor the paramount consideration in custody matters.

Under Muslim law, the mother ordinarily has the preferential right of custody (*hizanat*) of a female child until puberty, although that right remains subject to the child’s welfare.

The Court referred to *Valia Peedikakkandi Kutheessa Umma v. Pathakkalan Narayanath Kumhamu*, 1964 SCR (4) 549.

The Court relied on *Sugandhi v. P. Rajkumar*, (2020) 10 SCC 706, for the principle that procedural rules should not defeat substantial justice.

The Court relied on *Jasraj Inder Singh v. Hemraj Multanchand*, (1977) 2 SCC 155, regarding fairness and truth-oriented adjudication.

It further applied the principles on perversity stated in *Arulvelu v. State*, (2009) 10 SCC 206, and *Damodar Lal v. Sohan Devi*, (2016) 14 SCC 197.

The Court examined the Family Court’s order-sheet and found that, although notices were allegedly sent by post and publication was later sought, the proceedings were declared ex parte on 13 October 2025 without adequate steps to secure the mother’s effective appearance, particularly in a sensitive custody dispute.

The Court also noted that the mother was regularly appearing in connected maintenance proceedings and that the father had not informed her of the guardianship case despite the parties’ continuing interaction before the Family Court.

Since custody could not be fairly determined without hearing both parents and assessing the child’s welfare, the ex parte adjudication deprived the Court of the necessary perspective for deciding the child’s best interests.

The failure to follow the required procedure, coupled with the absence of proper consideration of the mother’s asserted custodial entitlement and the child’s young age, rendered the impugned judgment perverse and legally unsustainable.

The guardianship proceeding was revived from the stage of notice for fresh adjudication on merits.

The mother undertook to appear before the Family Court within four weeks, and the Family Court was directed to issue notice to the father and decide the matter expeditiously and independently, without being influenced by the High Court’s observations.

If custody had already been transferred to the father pursuant to the impugned order, it was directed to be restored forthwith to the mother pending fresh adjudication, in order to protect the welfare of the minor child.

The appeal and pending interlocutory applications were accordingly disposed of.