ORDER K.C. Bhargava, J.
1. This is a Habeas Corpus petition under Article 226 of the Constitution of India.
2. The allegations, briefly stated, are that the mother of the petitioner Smt. Shaveeh Zehra alias Nishat at the time of the marriage did not know that opposite party No. 1 Syed Sarvar Husain Rizvi has also married earlier. The petitioner's mother was married to opposite party No. 1 on 10-5-1984 at Lucknow, and a dowry was also given. The petitioner was born on 25-12-1985. The opposite party No. 1 started making demands from his first wife which was not complied with, hence she was divorced by opposite party No. 1. As the parties are Shia the alleged divorce is not binding and the first wife still continues to be the wife of opposite party No. 1. After the birth of the petitioner, the opposite party No. 1 started neglecting the petitioner's mother. The opposite party No. 1 used to call girls in absence of his parents. The opposite party No. 1 forced the petitioner's mother to cook food for the girls who used to visit that place. She was even asked to wash the clothes etc. of those girls. The opposite party No. 1 also used to demand money from time to tame. The opposite party No. 1 demanded Motor Cycle worth Rs. 20,000/-but the same was refused. The opposite party No. 1 forced the mother of the petitioner to take poison and she was rushed to Civil Hospital at Lucknow. The opposite party No. 1 thereafter did not give any proper treatment to the mother of the petitioner and left her to the place of maternal grand father. Thereafter the opposite party No. 1 did not come to take back the petitioner or her mother. The opposite party No. 1 sent a Talaqnama. The petitioner wants to stay with the mother. It is further alleged that the opposite party No. 1 has two daughters from this first wife and he is neglecting the petitioner. In the circumstances of the case it will not be proper for the petitioner to stay with her father and her custody should be given to the mother of the petitioner.
3. The petition is opposed. It is alleged by the opposite party No. 1 that the petitioner is only 4 1/2 years of age and the opposite party No. 1 is a lawful guardian of the petitioner and the custody of the child being not unlawful this habeas corpus petition does not lie, and the matter should be allowed to be agitated in a proper Court. It is, however, alleged that the welfare of the child is not safe in the custody of Smt. Shahbeen Zehra who has filed affidavit along with the Habeas Corpus petition as she has been lawfully divorced by the opposite party No. 1 and after the divorce she deserted the petitioner and left her at the house of the brother of opposite party No. 1, Syed Anwar Husain Rizvi, on 22-1-1990. She, as the mother of the petitioner, never cared the petitioner and she used to go out of the house of opposite party No. 1 for several days leaving the child to be looked after by the mother of opposite party No. 1. After the divorce was pronounced the mother of the petitioner has come forward to claim the custody of the minor. The father of the mother of the petitioner was a Class IV employee and his financial condition is not good. He has eight issues. The other allegations made by the petitioner against the opposite party No. 1 are without substance and are denied. The divorce was pronounced on 27-11-1989. It is alleged that the theory of administering poison to the mother of the petitioner is absolutely false. The mother of the petitioner left the house of opposite party No. 1 on 13-11-1989. The petitioner is being looked after by opposite party No. 1 and his mother.
4. Heard learned counsel for the parties. Learned counsel for the opposite party No. 1 has raised a question about the maintainability of this Habeas Corpus Writ petition. According to the learned counsel for the opposite party No. 1 the disputed questions of fact cannot be decided in this petition and the matter should be decided by the Regular Civil Court. Learned counsel for the petitioner has argued that in the present case the mother of the petitioner is a natural guradian because she is aged about 4 1/2 years only. As will be apparent from the perusal of the file there is dispute between the parties about the dowry, divorce and about the visit of the girls at the residence of opposite party No. 1. All these factors have to be taken into consideration while deciding the Habeas Corpus writ petition. These are the questions of fact which cannot be gone into in these summary proceedings. There is also an allegation about the financial status of the father of the mother of the petitioner. According to the opposite party No. 1, he is not in a position to maintain the petitioner. The petitioner is a minor and she is in the custody of the opposite party No. 1 who is father of the petitioner. This petition cannot be decided on the basis of the statement of the minor, who is alleged to be illegally detained by the opposite party No. 1. In view of the serious dispute between the parties on the question of fact, this Court feels that it is not a fit case in which jurisdiction under Article 226 of the Constitution of India should be exercised. The matter should be left to be decided by the Regular Courts.
5. In view of what has been said above this Habeas Corpus writ petition is dismissed.