1. Heard Sri Brijesh Kumar Mishra, learned counsel for the petitioners, Sri Vinod Kant, learned Additional Advocate General alongwith Sri Arvind Kumar, learned Additional Government Advocate appearing for the State - respondents and Sri Lihazur Rahman Khan appearing alongwith Sri Araf Khan, learned counsel for the respondent no.4.
2. The present petition for a writ of habeas corpus has been filed with the following prayers:-
"1. Issue a writ, order or direction in the nature of Habeas Corpus directing the respondents to produce the petitioner no.1 and 2 before this Hon'ble court and save the right of personal liberty of the corpus from the illegal detention of respondent no.4.
2. Issue a writ, order in the nature of mandamus directing the respondents to give the custody of petitioner no.1 and 2 to the petitioner as he has the father and natural guardian of petitioner no.3."
3. The petitioner no.3 claims to be the father and natural guardian of the petitioner nos.1 and 2 (aged about six years and two years respectively). It is contended that the wife of the petitioner no.3 expired on 27.05.2020 and thereafter, the petitioner nos.1 and 2 were taken away by the respondent no.4 (father of the deceased wife). Counsel for the petitioners contends that the custody of the petitioner nos.1 and 2 with the respondent no.4 is illegal and that the custody of the aforesaid petitioner nos.1 and 2 be handed over to the petitioner no.3.
4. Sri Lihazur Rahman Khan, learned counsel appearing for the respondent no.4, has placed reliance upon the counter affidavit and submits that the petitioner no.3 himself had entrusted custody of the petitioner nos.1 and 2 to the respondent no.4 (maternal grandfather of the minor children) and their maternal grandmother. Reliance in this regard has also been placed on a notarial affidavit of the petitioner no.3 himself, to support the contention that the custody of the petitioner nos.1 and 2 was handed over by him on his own volition to the maternal grandparents of the minor children.
5. Further reliance has been placed on the principles enunciated in Sections 352 and 353 of Mulla Principles of Mahomedan Law1 to contend that in case of a male child below the age of seven years and a female child who has not yet attained puberty, the mother is entitled to the custody (hizanat) and that failing the mother, the custody belongs to the mother's mother.
6. Counsel for the petitioners has not disputed the fact with regard to the affidavit having been executed by the petitioner no.3, in terms of which the custody of the petitioner nos.1 and 2 was handed over by the petitioner no.3 to the respondent no.4 and the maternal grandmother. He has, however, sought to contend that being the father, he would be the natural guardian of the minor children and would be entitled to their custody.
7. Learned Additional Advocate General appearing for the State - respondents submits that once the petitioner no.3 does not dispute the fact that the custody of the petitioner nos.1 and 2 (minor children) was handed over to their maternal grandparents by the petitioner no.3 himself, it would not be a case of illegal custody and the present petition seeking a writ of habeas corpus would not be entertainable.
8. Rival contentions now fall for consideration.
9. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 18902 and an order with regard to guardianship upon an application filed by a person claiming entitlement may be passed under the aforesaid enactment.
10. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor.
11. Section 17 of the GWA relates to matter to be considered by the court in appointing guardian and in terms thereof it is provided that the court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA.
12. It is common ground between the parties that insofar as the question of custody is concerned, their rights are to be governed by the personal law.
13. The matters relating to "Guardianship of Person and Property" are provided under Chapter XVIII of Mulla Principles of Mahomedan Law and Part A thereof pertains to "Appointment of Guardians". In terms of Section 349 all applications for the appointment of a guardian of the person or property or both of a minor are to be made under the GWA. Further, Section 351 of Mulla Principles of Mahomedan Law, which is in terms of Section 17 of the GWA, imposes a duty upon the court in appointing guardian to make the appointment consistently with the law to which the minor is subject, keeping in view the welfare of the minor.
14. The subject matter relating to "Guardianship of a Person of a Minor" is dealt with under Part B of Chapter XVIII of Mulla Principles of Mahomedan Law, and Sections 352 and 353 thereof are extracted below:-
"352. Right of mother to custody of infant children.-- The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f).
353. Right of Female relations in default of mother.--Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:--
(1) mother's mother, how highsoever;
(2) father's mother, how highsoever;
(3) full sister;
(4) uterine sister;
(5) consanguine sister;
(6) full sister's daughter;
(7) uterine sister's daughter;
(8) consanguine sister's daughter;
(9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters."
15. A conjoint reading of the aforesaid provisions indicates that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty, and failing the mother, the custody of a boy under the age of seven years and of a girl who has not attained puberty, belongs to the female relatives in an order under which the mother's mother is shown first.
16. The custody of the two minor children (male aged about six years and female aged about two years) with their maternal grandmother and maternal grandfather cannot therefore be stated to be prima facie illegal. It may, however, be added that the entitlement of the mother or failing the mother, the mother's mother of the minor child, is up to a certain age according to the sex of the child, but she is not the natural guardian and it is the father who is the legal guardian under the personal law as held in the decision of the Privy Council in Imambandi and others v Mutsaddi and others3.
17. The question of custody is different from the question of guardianship and the rights with regard to custody can be independent of and distinct from that of custody, in the facts and circumstances of each case, as held in Athar Hussain v Syed Siraj Ahmed and others4, wherein it was held that though the father can be the natural guardian, custody can be entrusted to another person keeping in view the welfare of the children. In the facts of the case it was held that under the personal law governing the children, maternal relatives shall have preference for custody.
18. In the case of Athar Hussain (supra) while considering the question regarding the right of a female relation of a minor in distinction with the right of guardianship under the personal law, reference was made to an earlier decision in Siddiqunnisa Bibi v Nizamuddin Khan and others5, wherein it was stated as follows:-
"A question has been raised before us whether the right under the Mahomedan law of the female relation of a minor girl under the age of puberty to the custody of the person of the girl is identical with the guardianship of the person of the minor or whether it is something different and distinct. The right to the custody of such a minor vested in her female relations, is absolute and is subject to several conditions including the absence of residing at a distance from the father's place of residence and want of taking proper care of the child. It is also clear that the supervision of the child by the father continues in spite of the fact that she is under the care of her female relation, as the burden of providing maintenance for the child rests exclusively on the father..."
19. The question of custody and guardianship were held to be independent and keeping in mind the paramount consideration of the welfare of the children, their Lordships in the case of Athar Hussain (supra) held as follows:-
"34. Thus the question of guardianship can be independent of and distinct from that of custody in facts and circumstances of each case.
35. Keeping in mind the paramount consideration of welfare of the children, we are not inclined to disturb their custody which currently rests with their maternal relatives as the scope of this order is limited to determining with which of the contesting parties the minors should stay till the disposal of the application for guardianship."
20. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v State of U.P. and others6 and Kanu Sanyal v District Magistrate Darjeeling7.
21. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Nithya Anand Raghvan v State (NCT of Delhi) and another8, and it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person.
22. Taking a similar view in Sayed Saleemuddin v Dr. Rukhsana and others9, while considering the scope of a habeas corpus petition seeking transfer of custody of children it was held that the principal consideration for the court would be to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of some one else. It was stated thus:-
"11. ...it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court..."
23. The question of maintainability of a habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud and others v Shekhar Jagdish Prasad Tewari and others10 and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this regard are as follows:-
"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.
x x x
19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law."
24. It is therefore seen that in an application seeking a writ of habeas corpus for custody of a minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed.
25. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate court.
26. The aforementioned legal position has been discussed in a recent judgment of this Court in Rachhit Pandey (minor) and another v State of U.P. and 3 others11.
27. The facts of the present case do not in any manner suggests that it is a case of illegal custody and in view thereof, the present petition seeking a writ of habeas corpus would not be entertainable.
28. As regards the claim for custodial rights, it is always open to the parties to avail the appropriate remedy for the purpose before the proper forum.
29. The observations made hereinabove are prima facie in nature and the same would be without prejudice to the rights and contentions of the parties which may be agitated in appropriate proceedings.
30. The petition fails and is accordingly dismissed.
Order Date :- 12.2.2021 Shahroz/Shalini (Dr. Y.K. Srivastava,J.)