JUDGMENT Amar Saran, J.
1. Heard Sri Santosh Srivastava, learned counsel for the petitioners and Sri N.I. Jafri, learned counsel for Opposite party No. 3
2. A habeas corpus petition had been filed by Zakiya Khatoon for the custody of her minor son Hanjila, who was detained by his lather, Rafi Ahmad. Orders were passed by Hon'ble M.P. Singh J on 5.4.04 for production of Hanjila subject to the petitioner depositing Rs. 2000/- as costs within a week. The said sum had duly been deposited by the petitioner. After bailable warrants and other coercive measures, the child was produced before me on 12.10.2004 by his father Rafi Ahmad, O.P. No. 3.
3. On that date I had passed the order directing opposite party No. 3 to hand over the custody of the child, Hanjla, to his mother, Zakiya Khatoon, and directed the parties to reappear before me on 28.10.2004. This order was passed overruling the vehement objections by Sri Jafri, that the child would be traumatized if his custody was changed at this stage, as the child did not even recognize his mother now, and that the child's opinion be sought before handing him over to his mother, as the child was an intelligent boy of 5 1/2 years, who would be able to indicate the parent whose custody he would prefer. This Court had however proceeded to hand over the child to the mother for a period of 16 days on 12.10.2004 till the conclusion of the Dusshera vacations on a trial basis as an experimental measure for ascertaining whether the child would be able to adjust to his long separated mother. The opinion of the child was not taken, as the Court was of the opinion that as the child had been separated from his mother when he was only a few days he would in all likelihood not even be able to recognize his mother, and it was not unlikely that he may have been tutored to give a statement in favour of his father and against his mother. When the child was handed over to his mother, he did raise a hue and cry. But the Court chose to ignore the wailing of the child, as the Court was of the opinion that the love of a mother for her child is irreplacable and can have no substitute, and that she would indeed succeed in winning over the heart of her child, if there was no fault or shortcoming in her love. However while handing over Hanjila to his mother, and directing his production in Court again on 28.10.2004 the Court had verbally directed the parties to strictly comply with the orders of the Court, and requested the Counsel to come forward with suggestions how best to ensure the welfare of Hanjila. It is gratifying to note that the parties and their Counsel have appreciated the Courts orders in its true spirit.
4. In pursuance of the Court's order Zakiya Khatoon has again come to Court today with the child. The father of the child. Rafi Ahmad, opposite party No. 3, is also present. Both parties are behaving in a very co-operative and civil fashion, and the usual tension which ensues in Courts when battles are fought for custody of a child is conspicuous by its absence in this case. I think the Counsel for the patties arc also to be complemented for this situation, as they must have given sane advise to their clients.
5. It is deeply satisfying for the Court to note that the child is calmly sitting at the side of his mother Sri Jafri also fairly admits that the child appears to have adjusted to his 'newly found' mother. Although Sri Jafri states that the child did not sleep so well in his mother's home, but in the opinion of the Court these could be teething troubles, after the shifting of the child to a new home. It indicates that the Court's experiment has borne fruit, and the 5 year old child appears to have adjusted to his mother.
6. As the paramount concern of the court in such matters is the welfare of the child, I think in the Background of this case the greater interest of the child would be served if he is allowed to stay in the custody of his mother, Mohammadan law provides that until the age of 7 years if the child is male and the age of puberty if a child is female, the preferential custody is of the mother's. However more than this admonition of Muslim law, the real basis for the Court's for the mother's custody is the belief of the Court that the love and care of a mother can have no parallel. Also there are no allegations in the counter-affidavit, nor have any arguments been raised by Sri Jafri that there is any fault with the mother disentitling her to get the child's custody. No doubt, it was pointed out by Sri Jafri that the mother has taken 5 years in coming to this Court for the custody of the child. But the Court is aware of the problems that pardanashin Muslim women face in this country, and the Court can appreciate the trial and tribulations the mother struggling to get custody of her child must have undergone for approaching this Court and for obtaining the order dated 12.10.2004, and for securing its hearing today. It took over 5 months and issuance of warrants since the filing of this habeas corpus petition on 6.5.2004 for the child to be produced on 11.10.2004 and thereafter for getting the case heard today.
7. As against this circumstance, opposite party No. 3, Rafi Ahmad, had divorced the petitioner, Zakiya Khatoon and had retained the child when the child was a few days old. Now Rafi Ahmad has again married another lady, one Lezana on 30.8.2003, and it cannot be ruled out that the father's affection for Hanjila may be divided on the future arrival of a baby in the family from his new wife. In view of all these circumstances this Court is of the considered view that the mother would be the best person to be entitled for the custody of the child.
8. However this Court in its capacity as loco parentis also feels that it is important that the child is given protection and economic support by his father Rafi Ahmad who appears to have brought him up suitably up to this stage This court therefore feels that the best interest of the child could be served if alongside with award of custodial rights to the mother, visitation rights are given to the father Rafi Ahmad as he has expressed a desire for visiting the child. This Court records its appreciation that Sri Rafi Ahmad signalled his agreement through his counsel to pay Rs 1500 every month for for the maintenance of his child Hanjila.
9. With this end in view this Court directs that whilst Hanjila may remain in the continuous custody of his mother Zakiya Khatoon, Sri Rafi Ahmad shall be permitted to visit Hanjila in the maternal home of Zakia Khatoon every Sunday at 9 a.m. for 2 hours. This privilege of visiting the child will be granted to Rafi Ahmad so long as he pays, and continues to pay a sum of Rs. 1,500/- by the 7th day of each month for maintenance of the child Hanjila. This money will be handed over to Zakia Khatoon, who is directed to cooperate with Rafi Ahmad and to create no impediments in Rafi Ahmad meeting with the child, as directed above.
10. List this case again on 1.3.2005, when the parties may express their views on any other developments or problems that may have crept up in the implementation of this order, or they may like to offer some further suggestions for enhancing the welfare of the child