Iqbal Ahmad v. Shaban Ali Khan — 1985 DIGILAW 105 (ALL)

JUDGMENT : U.C. Srivastava, J. The reference made by the Division Bench of this Court on 30-1-1981 for constitution of a larger bench on the preliminary objection which was raised by the Respondent that writ of habeas corpus was not maintainable as complicated questions of fact averred can only be gone into, in proceedings under Guardian and Wards Act and not a writ petition, has led to the constitution of this Full Bench. The Division Bench was of the view in Writ Petition No. 7296 of 1976 Fakhrunnisan v. Qamar Ahmed now reported in 1980 Lucknow Law Journal 237 that a writ in the nature of habeas corpus was maintainable in appropriate oases two broadly stated questions of law and did not bring about distinction between the oases in which relief may be granted to a Petitioner in a writ of habeas corpus and cases where he may be asked to seek his remedy under Guardian and Wards Act. 2. As the entire case was referred to the larger Bench we heard the entire case and also summoned the minor's mother and the minor before the Court. On 25-1-1985 we pronounced the operative portion of the order dismissing the writ petition for reasons to be assigned later on and the same are being assigned now. 3. Briefly stated, the facts are that Smt. Afsan Bano, the mother of the minor through whom this habeas corpus petition has been moved, was married to Javed Khan opposite party No. 2 on 9-12-1977. Javed Ahmad Khan is a Lecturer in Government College while Respondent No. 1 his father is a Civil Court employee at Sitapur. In connection with his service Shri Javed Ahmad was posted at several stations including Pithoragarh, Shakti Farm, Nainital and Orai at present he is at Lucknow. Smt. Afsan Bano stayed with her at times at first three stations. Iqbal Ahmad regarding whose name a dispute has been raised is known as Firoz Ahmad in the Institution where he studies and Iqbal Javed at his grand parents' house. The minor was born on 9-9-1978 and is now about six and half years old. A daughter was also born from this wedlock on 9-2-1980. In that year, it seems, relations between the parties embittered and have now gone to the extent that they have rather become irreconciliable differences. Smt. Afsan Bano resides at Shahjahanpur at her mother's place. The minor was born on 9-9-1978 and is now about six and half years old. A daughter was also born from this wedlock on 9-2-1980. In that year, it seems, relations between the parties embittered and have now gone to the extent that they have rather become irreconciliable differences. Smt. Afsan Bano resides at Shahjahanpur at her mother's place. The minor was taken to Sitapur by the father but according to the mother he was taken for two days but was brought back to Shahjahanpur because of illness and again he was taken back to Sitapur and thereafter was returned to her when she filed maintenance application but was later on taken away by the father-in-law on a Taxi and the mother failed to get him back On behalf of the opposite parties it has also been stated that the grand-mother would not like to part away with the child as he is the only child in the family being the son of their only issue Javed Ahmad and was voluntarily given by Smt. Afsan Bano to Javed Ahmad at Shahjahanpur. According to the opposite party No. 2 when he learnt that Firoz Ahmadi who was so much attached to his grand-mother could not sleep one particular night and was remembering his grand-mother, he brought him to Sitapar with the consent of Smt. Afsan Bano though in his affidavit in the same; paragraph No. 11 he has used the word that after recovery of Firoz Ahmad he asked his mother to reside with him at Orai. No averment has been made by the opposite parties that the mother voluntarily gave away child to them and with an intention not to take back his custody. An application for maintenance was filed on 7-9-1980 but it was decided on 30-3-1982 during the pendency of the writ petition. A maintenance of Rs. 100/- was allowed only to the daughter but the prayer of the mother was refused. The said daughter is now said to be studying at Dehra Dun and staying with the mother's sister. An application for maintenance was filed on 7-9-1980 but it was decided on 30-3-1982 during the pendency of the writ petition. A maintenance of Rs. 100/- was allowed only to the daughter but the prayer of the mother was refused. The said daughter is now said to be studying at Dehra Dun and staying with the mother's sister. In the maintenance case, an application for medical examination of Smt. Afsan Bano was made and though dubious language was used without any open allegation, but the Munsif Magistrate took it as if the allegation was that she was pregnant because of some relation with some other person, may it be that during oral submission some such thing was said. It may be that the same resulted in aggravation of embittered relationship. Javed Ahmad filed a suit for restitution of conjugal rights on 4-10-1980 which was decreed ex-parte on 4-10-1981 i.e. during the pendency of this writ petition. The ex-parte decree was without any condition even as to the payment of prompt dower to the lady prior to the execution of the decree. An application for setting it aside was moved but the same was dismissed. 4. A writ of habeas corpus is a writ of right. If it is for custody of child between parents it can be a writ of course also. In such cases legal principles as to the entitlement of custody will have full say except when the paramount consideration of welfare may clearly require otherwise. The English Courts have consistently held that neither the allegation that the child is under no restraint nor that the child consents to this situation will prevent them from acting on habeas corpus. A reference in this connection may be made only to two cases: (i) R.V. Green Hill (1836) 4 AE 624. (ii) Stevension v. Florent (1925) SCR 532. In Green Hill's case, Coleridge, J. observed, "A habeas corpus proceeds on the facts of an illegal restraint...where the person is too young to have a choice we must refer to the legal principles to see who is entitled to the custody". 5. In Gohar Begam Vs. Suggi alias Nazma Begam and Others, AIR 1960 SC 93 , in which an application was moved by a mother u/s 491 Criminal Procedure Code for the custody of her minor illegitimate daughter aged 6 years. 5. In Gohar Begam Vs. Suggi alias Nazma Begam and Others, AIR 1960 SC 93 , in which an application was moved by a mother u/s 491 Criminal Procedure Code for the custody of her minor illegitimate daughter aged 6 years. It was observed, while dealing with the question of alternative remedy, that there was no reason why the Appellant could not compel to proceed under Guardian and Wards Act for recovery of the custody of toe child. " It was further held that she had a clear right to order of custody of child u/s 491 Criminal Procedure Code and the fact that there was a right under the Guradian and Wards Act was no justification for denying right available to her by way of proceedings u/s 491 Criminal Procedure Code. 6. In Capt. Dushyant Somal Vs. Smt. Sushma Somal and Another, (1981) 2 SCC 277 it was observed that there can be no question that a writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. A writ of habeas corpus, thus, not being only a right but also of course in the matter of custody of the minors more so when the dispute is between parents can be entertained notwithstanding that an alternative remedy under the Guardian and Wards Act which may even not be efficacious is available. An alternative remedy is a rule of discretion and not exercise of discretion. If habeas corpus petition notwithstanding that there are certain disputed questions of fact if an enquiry into such facts is not necessary for the purposes of issuing a writ of habeas corpus, looking into the nature of detention, the relationship and the entitlement, a writ can be issued on the basis of materials on record. Even though the disputed questions of fact may not be investigated normally under Article 226 of the Constitution of India but it is not incompetent to decide issues of fact which can be determined from the materials on record. 7. In Century Spinning and Manufacturing Company Ltd. and Another Vs. Even though the disputed questions of fact may not be investigated normally under Article 226 of the Constitution of India but it is not incompetent to decide issues of fact which can be determined from the materials on record. 7. In Century Spinning and Manufacturing Company Ltd. and Another Vs. The Ulhasnagar Municipal Council and Another, (1970) 1 SCC 582 it was held that merely because questions of fact are involved which can be decided on the materials on record a writ petition is not to be thrown out in limine, in Mohd. Ikram Hussain Vs. State of U.P. and Others, AIR 1964 SC 1625 it was observed: "It was wrong to think that Habeas Corpus proceedings in Court is prohibited from and no rule of Court has laid down that evidence shall not be received." 8. In a writ of Habeas Corpus notwithstanding that disputed questions of fact arise but if the questions relevant to issuance of writ can be decided on the basis of materials on record ignoring the other questions of fact, writ petition is maintainable. Even if some evidence is needed for any clarification the same can also be done. The doubts which have been expressed by the Division Bench which has referred this case to a larger Bench on a wrong premise that a writ of Habeas Corpus is not as a matter of course and without considering the scope and the distinctive feature of a writ of Habeas Corpus with other writ are not correct. The Division Bench in Fakhrunnisan's case (supra) and a Single Judge of this Court in Smt. Imtiaz Bano Vs. Masood Ahmad Jafri and Others, AIR 1979 All 25 has rightly held that if remedy under Guradian and Wards Act was not adequate and efficacious, writ petition was maintainable. 9. In the instant case the matter has been complained from the very beginning that child has been snatched from her. She alleged it in her application for maintenance u/s 128 Code of Criminal Procedure. Even if it could be said that when relations were bad she gave the child to the father for taking it to the grand mother for few days. It has not been alleged that she undoubtedly handed over the custody for not taking it back or surrendered her legal right. Even if it could be said that when relations were bad she gave the child to the father for taking it to the grand mother for few days. It has not been alleged that she undoubtedly handed over the custody for not taking it back or surrendered her legal right. In these circumstances it was clear that the retention of custody of child was against her will and her desires and attempts for the same failed. The custody thus will not be legal and against the wishes of persons entitled to have company notwithstanding disputed questions of fact leading to it, Writ Petition is entertainable. The question of welfare of minor raised in this petition is similarly is of such nature which could be decided on the basis of material on record. 10. Under the Mohammdan Law and particularly among Sunnis (Hanafi) to which set parties belong mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and of her female child when she has attained the right of puberty. This right continues even though she is divorced except in cases where she remarries in which case the custody belongs to the father. The word 'custody' is synonymous with guardianship. Under the same law the father is the natural guardian and even if custody be with separated mother he continues to be the guardian. He has a right to educate and take charge of the minor. Even though the custody of minor may be with mother who has right of rearing the child that is 'Hizanat' but the father has got right of supervision. 11. In Hamilton Hiday Volume I at page 385 it has been observed: If a separation takes place between a husband and wife who are possessed of infant child, the right of nursing and keeping it rests with the mother because it is recorded that the woman once applied to the Prophet saying. 11. In Hamilton Hiday Volume I at page 385 it has been observed: If a separation takes place between a husband and wife who are possessed of infant child, the right of nursing and keeping it rests with the mother because it is recorded that the woman once applied to the Prophet saying. O Prophet of God: this is my son the fruit of my womb cherished in my bosom and suckled at my breast and his father is desirous of taking him away from me in his own 'care' to which the prophet replied, "thou has a right in the child prior to they husband, so long as thou does not marry with a" stranger "moreover a mother is not only more tender but also better qualified to cherish a child during infancy so that committing the care to her is of advantage to the child.... 12. In Fatwal Alamgiri Vol. I page 728 it has been observed: The mother is of all the persons best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution. 13. Amir Ali in Mohammedan Law Volume II at page 304 has observed, "The mother can on no account give up her right of 'Hizanat' for even if she were to obtain a Khula in lieu of her abandonment of her right to her child custody Khula will be valid and she will retain a right of Hizanat." 14. Mulla in Principles of Mohammedan Law para 352 (18th Edition) has observed: 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 of the father(f). 15. A.H.A. Fyzee in Book outline of Mohammedan Law IV Edition has stated: Mother: custody of an infant child belongs to the mother and this right is known as Hidana. The mother is entitled in Hanafi Law-to the custody of her male child till the age of 7 years and of her female child till puberty. 16. 15. A.H.A. Fyzee in Book outline of Mohammedan Law IV Edition has stated: Mother: custody of an infant child belongs to the mother and this right is known as Hidana. The mother is entitled in Hanafi Law-to the custody of her male child till the age of 7 years and of her female child till puberty. 16. In Imambandi v. Haji Musaddi AIR 1918 PC 11 it was held that Hidaya and Fatwa Alamgiri are recognised as standard authorities in this country for Hanafi Sunnis. In the said case it was held, "...The father alone or, if he be dead, his executor (under the Sunni Law) is the legal guardian" and that the mother is entitled only to the custody of the person of her minor child upto a certain age according to the sex of the child. But she is not a natural guardian. 17. In view of the fact that under Mohammedan Law, right of custody (Hizanat) with the mother she is entitled to custody in preference to the father who is a natural guardian but merely because the mother has got a right of custody that cannot be taken to mean that even it welfare of the child is with father even then the custody will be with the mother. Paramount consideration is the welfare of the minor. 18. in Halsbury Laws of England (IV Edition) Volume 21 the law has been stated as follows: 428: Infant's welfare paramount: In any proceedings before any Court concerning the custody or up-bringing of an infant or administration of any property belonging to or held on trust for an infant or application of the income thereof the Court must regard the welfare of the infant as the first and paramount consideration and must not take into consideration whether from any other point of view the claim of the father or any right at common law possessed by the father in respect of such custody, up-bringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. The provisions apply both parents are living or either of them are dead. 19. In Barnado v. M.C. Hugh (1981) IQB 194 Lord Esher observed, "A Habeas Corpus in custody cases differs fundamentally from its use to secure personal liberty has always been recognised. The provisions apply both parents are living or either of them are dead. 19. In Barnado v. M.C. Hugh (1981) IQB 194 Lord Esher observed, "A Habeas Corpus in custody cases differs fundamentally from its use to secure personal liberty has always been recognised. It is seen to involve, not a question of liberty but of nature, control and education." 20. In R. v. Green Hill (Supra) Lord Berman C.J. observed that a child, who is not of an age to exercise a choice to decide where he will go, would only expose him to danger or seductions and the Court must make an order for his being placed in the proper custody. In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840 it was observed...merely because the father loves his children and is not shown to be otherwise undersirable cannot unnecessarily lead to the conclusion that the welfare of the children would be better promoted by granting custody to him as against wife who may also be affectionate towards her children and otherwise equally free from blemish and who, in addition because, of her profession and financial resources may be in a position to guarantee better health, education end maintenance for them. The children are not mere chattels; nor are they mere play things for their parents. Absolutely right of parents over the destinies and lives of their children as in the modern changed social conditions yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful member of the society and the Guardian Court in case of a dispute between mother and the father is expected to strike a just proper balance between the requirements and welfare of the minor children and the rights of their respective parents over them...." Although the said observations were made in a case under Guardian and Wards Act but the said observations will hold good even in a writ of habeas corpus where the question is of custody of minors. In Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, (1981) 3 SCC 92 it was observed that, "It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. In Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, (1981) 3 SCC 92 it was observed that, "It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. The High Court, without adverting to this aspect of the matter, has dismissed the petition on the narrow ground that the custody of child with the Respondent cannot be said to be illegal. This being the legal position, in case where the parties are Mohammedan notwithstanding the fact that the custody of a son upto the age of 7 years is that of the mother but the paramount consideration being that of the welfare of the minor the custody can be that of the father also, if the interest and welfare of the minor that is nurture, control, education and development in the society, requires the custody of father than that of the mother, custody of the child will remain or go to the father. 21. In the instant case we summoned the mother and the child also. On one particular date the child was taken away without the permission of the Court by the grand father with the result that direction for the issuance of the warrant and bail had got be issued. We gave opportunity to the father and mother to reconcile but they failed to do so as the mother stated that attempts on her life were made by the husband and her life is not safe with him and she would not like to reside with him in these circumstances nor even if for some times her brother also resides with her. The child, who, obviously, does not recognise her mother, without looking at her, stated that he was net prepared to reside with his mother. On coming close to us he stated that he will prefer death than to stay with his mother. The child obviously was not in a position to understand anything or to take any decision and he appears to have been tutored from before and such tutorings are not conducive to the healthy development of a child who is studying in upper K.G. in English Medium and has passed lower K.G. securing 6th position. The child obviously was not in a position to understand anything or to take any decision and he appears to have been tutored from before and such tutorings are not conducive to the healthy development of a child who is studying in upper K.G. in English Medium and has passed lower K.G. securing 6th position. The financial condition of the mother and the brother of Smt. Afsan Bano with whom she resides is not bad but obviously they do not appear to be affluent circumstances. The daughter is already with the mother and the father and the grand parents have got the son who obviously is being looked after by them with great interest, the father having not remarried and their affection is confined to him and they are giving him good education. Without entering into the details or disputes it is evident that the balance of welfare tilts much more in favour of father than the mother. The child has crossed the age of breast feeding. From the point of view of child's education and development, it appears to be in his interest that he should not be sent to reside with the mother which may result in discontinuance of his studies, a sudden psychological effect and lesser mental and physical equipment. The mother may not be able to maintain the child in a better condition than what it is done by the father. As such, these facts indicates that welfare of the minor is more with the father than with the mother Although certain disqualifications were enumerated on behalf of the Respondents but a probe in the same is not necessary for deciding the controversy in issue. It is true that the petition has been lingering on for the last so many years and if the matter would have been taken at an earlier stage the position might have been different. But that is no ground for taking away the child from the custody of the father and giving it to the mother. 22. However, this does not mean that even during the period of Hizanat or even thereafter the mother may be completely deprived of the child for whom she too has great affection and has been making efforts for custody. 22. However, this does not mean that even during the period of Hizanat or even thereafter the mother may be completely deprived of the child for whom she too has great affection and has been making efforts for custody. As such once in a month the child will be taken to mother for two hours by the father or his representative and after two hours the child will be brought back to the father, and during vacations lasting for more than seven days the child will be sent to the mother if desired by her at Shahjahanpur or at Lucknow at the cost of the father at a place to be specified by the mother where she will be staying. This process will start from the month of February, 1985 itself provided a written undertaking is given by the mother before this Court that she will not take away the child anywhere else and would send him back to the father or hand him over to father or his representative before the expiry of the period for which he will be sent. With these observations the writ petition is dismissed. There will be no orders as to the costs.