Rayees Ahmad v. Suraiya — 1986 DIGILAW 734 (ALL)

Judgment S.D. Agarwala, J. 1. THIS is a Habeas Corpus petition under Article 226 of the Constitution of India filed by four minors ; the first three petitioners, namely, Rayees Ahmad, Anis Ahmad and Saleem Ahmad, are minors, aged 15, 13 and 11 1/2 years respectively, and petitioner no. 4, Km. Nargis, is also a minor, aged 10 years. The ages of the petitioners when they filed the petition in the year 1984, were 13, 11, 9 1/2 and 8 years respectively. Petitioner nos. 1 to 3 have filed the petition through their natural paternal grand father Abdul Zaheer while petitioner no. 4, who is a minor girl, has filed the petition through Smt. Bayiyan, her paternal grand-mother. 2. NOTICES of this petition were issued to the mother Smt. Suraiya, respondent no. 1, as well as respondent nos. 2 to 4 of this petition. Respondent no. 2 is the brother of the mother of the petitioners. Respondent nos. 3 and 4 are the father and mother respectively of the mother of the petitioners, namely, they are the maternal grand parents of the petitioners. Inspite of repeated notices, no counter affidavit has been filed to this petition. Smt. Suraiya Begum, the mother of the petitioners, gave a statement in this Court, which is as under : "My name is Suraiya Begum, I am living with my Children near the house of my father, I have re-married. The applicant nos. 1 to 4 are born from my former husband named Abdul Samad. The Children are living with me and 1 am bringing them up for the last ten years." 3. IN the petition, it has been stated that the father of the petitioners, who was a truck driver, died in an accident on 2nd June, 1975. After the death of Abdul Samad, the late father of the petitioners, their mother shifted to the residence of respondent nos. 3 and 4, who are her parents. It has been further stated in the petition that Smt. Suraiya Begum, the mother of the petitioners, has re-married on 6th November, 1982, to one Rasool Ahmad, and she has started living with him. A copy of the Nikahnama is also filed as Annexure-1 to the petition. 3 and 4, who are her parents. It has been further stated in the petition that Smt. Suraiya Begum, the mother of the petitioners, has re-married on 6th November, 1982, to one Rasool Ahmad, and she has started living with him. A copy of the Nikahnama is also filed as Annexure-1 to the petition. It has been further stated that after the re-marriage, the petitioners are detained in the house of Abdul Salam, who is the brother of Suraiya Begum and that no body bothers for the welfare of the petitioners. The petitioners have further stated that respondent nos. 2 to 4 are not even supplying them good fooding, lodging and clothing and, as such, the present petition has been moved for release of their custody from respondent nos. 2 to 4 and for placing them in the custody of Smt. Bayiyan and Abdul Zahoor, the maternal grand-parents of the petitioners. 4. SINCE no counter affidavit has been filed nor any body has appeared to contest this petition, the allegations made in this petition have gone uncontroverted. It is not disputed that Smt. Suraiya Begum has re-married. The maternal grandparents of the petitioners are not supplying proper fooding, lodging and clothing to the petitioners. In the circumstances, it has to be considered as to what is the proper order to be . passed in order to protect the rights of the petitioners. In Mulla's Principles of Mahomedan Law, 18th Edition, Section 354, it has been laid down as under : "354-A. A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody. (1) if she marries a person not related to the child within the prohibited degrees, e. g. a stranger, but the right revies on the dissolution of the marriage by death or divorce." 5. IT is not disputed that Smt. Suraiya Begum has re-married to a stranger. He is not related to the family and, as such, her right to have the custody of the children ceased. IT has now to be considered as to who will be the best person to have the custody of the petitioners. So far as petitioner nos. 1 to 3 are concerned, they are minor male children. Section 355 of the above Mulla's Principles of Mahomedan Law is as under : "355. IT has now to be considered as to who will be the best person to have the custody of the petitioners. So far as petitioner nos. 1 to 3 are concerned, they are minor male children. Section 355 of the above Mulla's Principles of Mahomedan Law is as under : "355. In default of the mother and the female relations mentioned in Sec. 353, the custody belongs to the following persons in the order given below :- 1. the father ; 2. nearest paternal grand-father; 3. full brother; 4. consanguine brother ; 5. full brother's son ; 6. consanguine brother's son ; 7. full brother of the father ; 8. consanguine brother of the father ; 9. son of father's full brother ; 10. son of father's consanguine brother ; Provided that no male is entitled to the custody of an unmarried girl, unless he stands within the prohibited degrees of relationship to her. If there be none of these, it is for the court to appoint a guardian of the person of a minor." Section 353, which is relevant, is also quoted below : "353. 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." 6. ACCORDING to Section 355, in the absence of the mother and the female relations, mentioned in Section 353, the custody belongs firstly to the father and then the son's grand-father. Since the father is now dead, the next paternal grand-father would be the rightful person in whom the custody, in law, shall vest. This right is subject to Section 353. Section 353 draws a distinction between a minor boy and a minor girl. In the case of a minor boy, under the age of seven years, certain female relatives have the right of custody. This right is subject to Section 353. Section 353 draws a distinction between a minor boy and a minor girl. In the case of a minor boy, under the age of seven years, certain female relatives have the right of custody. In the instant case, all the first three petitioners are minor boys, who are above the age of seven years, and, as such, the provisions of section 353 will not apply in regard to the first three petitioners. Since Section 353 does not apply to the first three petitioners, the paternal grand-father would be the rightful person to have the custody of the first three petitioners. The only case which is left to be considered is of the petitioner no. 4, who is a minor girl. Section 353 provides that in the case of a minor girl, who has not attained puberty, the custody would be of the female relatives. It is not disputed that the fourth petitioner has not yet attained puberty. Still the question, which would arise for consideration, considering the welfare of the minor, is it or is it not in the interest of the minor to leave the custody of the minor girl to respondent nos. 2 to 4. 7. IN Vinayak Goyal v. Prem Prakash Goyal, 1981 AWC 457 a Division Bench of this Court, after examining the various provisions, has laid down that while considering this question, the dominent factor, which the Court has to keep in mind, is the welfare of the child. 8. SIMILARLY, in Salamat Ali v. Smt. Majjo Begum, AIR 1985 Alld. 29 a Single Judge of this court had an occasion to consider this matter in detail. It has been held in this case as under : "On a consideration of the authorities, the legal position appears to be that where under the personal law the mother is entitled to the custody of a minor child, she should normally get the custody of the minor but she may be deprived of the custody if the evidence on record shows that it would not be in the interest of the minor to give the minor in the custody of the mother. Thus, the provisions of the personal law are to be applied consistently with the provisions of the Guardians and Wards Act. Thus, the provisions of the personal law are to be applied consistently with the provisions of the Guardians and Wards Act. The welfare of the minor can be determined only on the basis of evidence for which opportunity will have to be afforded to the party seeking it. This opportunity in the present case was not afforded to the applicant who wanted to show that Majjo Begum had abandoned the minor and had, therefore, forfeited the right of custody available to her under the personal law." On a consideration of the authority, the legal position appears to be that where under the personal law, the mother is entitled to the custody of the minor child, she should normally keep custody of the minor, but she will be deprived of the custody if the evidence on the record shows that it is not in the interest of the minor to give the minor in the custody of the mother. The welfare of the minor should be determined on the basis of the evidence for which an opportunity be afforded to the parties. In the instant case, notices of this petition were issued to the respondents. The respondents engaged their counsel also and Smt Suraiya Begum also appeared to give her statement in this Court, but, thereafter, nobody has even cared to appear and contest this petition. No counter affidavit has even been filed to controvert the allegations made in this petition. 9. FROM a reading of the entire petition, it is clear that it will not be in the interest of the petitioner no. 4 to give her custody to respondent nos. 2 to 4, though under section 353 of the Mulla's Principles of Mahomedan Law, the maternal grand-mother would be entitled to the custody till the petitioner no. 4 attains puberty. I am of the opinion that the welfare of the petitioner no. 4 lies in giving her in custody of the paternal grand-mother through whom the present petition has been filed. 10. IN view of the above, I am of the opinion that this petition is liable to succeed. The petition is, accordingly, allowed. A direction is issued to respondent nos. 2 to 4 to hand over the custody of the petitioners to Abdul Zaheer and Smt. Bayiyan, through whom this petition has been filed. 10. IN view of the above, I am of the opinion that this petition is liable to succeed. The petition is, accordingly, allowed. A direction is issued to respondent nos. 2 to 4 to hand over the custody of the petitioners to Abdul Zaheer and Smt. Bayiyan, through whom this petition has been filed. Since the respondents have not appeared in this Court, the Senior Superintendent of Police, Jalaun at Orai, is directed to take the custody of the petitioners from respondent cos. 2 to 4 and hand them over to Abdul Zaheer and Smt. Bayiyan, residents of mohalla Bhattipura tehsil Kalpi, district Jalun at Orai. The parties are directed to bear their own costs. Petition allowed.