Judgment :- Varghese Kalliath, J. This petition unfolds the case of a broken marriage and its tattered victim a bright baby girl Simi aged 6. 2. The petitioner is the father of Simi and the second respondent is her mother. The marriage between the petitioner and the second respondent was broken irretrievably. It is admitted that the marriage was broken and dissolved by Talaq and an agreement has been executed by the petitioner and the second respondent. As regards the agreement, the second respondent has got a case that she was forced to be a party to the agreement. 3. In the agreement, the petitioner and the second respondent agreed to on certain terms. A copy of the agreement is produced as Ext.P1 in this case. One of the important terms in the agreement is that the petitioner is allowed the custody of Simi. Further, it is provided that both the parties, the petitioner as well as the second respondent, should withdraw the legal proceedings taken by them in the courts. The petitioner has filed a petition for restitution of conjugal rights and the second respondent has filed a criminal complaint against the petitioner under the Dowry Prohibition Act. It is agreed that both these proceedings should be withdrawn on the basis of the agreement. This agreement was executed on 22-1-1991. 4. As per the agreement the custody ofthe child Simi was given to the petitioner-father who is the natural guardian of Simi. The petitioner admitted the child in a school at Quilon. The parties are residing at Trivandrum. The child was living with the petitioner's sister at Quilon for her education. According to the petitioner, this arrangement was made for giving good education to the child. She has been admitted in an English medium school, St. Joseph's Convent School. It is said that the school is keeping very high standard and is imparting quality education. The child was admitted in the above school in June 1991 in the Upper KLG. She was promoted to the I st standard and is now studying in the 1st standard. During Onam holidays, the child was brought to the petitioner's residence at Trivandrum. The petitioner is living with his old mother. The child was admitted in the above school in June 1991 in the Upper KLG. She was promoted to the I st standard and is now studying in the 1st standard. During Onam holidays, the child was brought to the petitioner's residence at Trivandrum. The petitioner is living with his old mother. The petitioner is a businessman and when he had gone for business purposes to Trichur on 13-9-1992, the mother-second respondent and her brother, the third respondent without the consent and against the resistance offered by the mother of the petitioner, took away the child Simi. This necessitated the filing of this habeas corpus petition. The petition was filed on 23-9-1992. Before filing this petition, a complaint was lodged before the local police stalion. This Court issued notice on24-9-1992 by special messenger to respondents 2 and 3. The respondents appeared before this Court with the child. 5. We have no doubt that where possible, a child needs, and it is in his best interests to have, a continuing relationship with both parents after divorce. 6. The respondents contended that the child was taken not from Trivandrum where the petitioner is living, but from the house of the petitioner's sister at Quilon. Now the child is with the mother and it cannot be considered that the child is in unlawful custody and that this Court should not pass any order to hand over the child to the petitioner in this proceedings. 7. At the outset we have to determine our jurisdiction in this matter. Generally in habeas corpus petitions, the jurisdiction of this Court is to direct the person who is said to be in unlawful custody to be brought before the Court and to set him free if he is under unlawful custody. But in the case of a child it is not possible for this Court to leave the matter there and to say that the child has been brought before this Court and that he or she, as the case may be, can be set free. Further, we have to consider the question whether to whom the custody of the child should be given. Further, we have to consider the question whether to whom the custody of the child should be given. We had doubt as to whether we can decide the question, to whom the custody can be given in a case where the petitioner in a habeas corpus petition alleges that from lawful custody of the father the child was taken by the mother of the child. In this regard, there is a plain and clear pronouncement of the Full Bench of this Court in Marggarate Maria v. Dr. Chacko, 1969 KLT 174 (F.B.) as to the positive obligation of the Court in such circumstances. In habeas corpus proceedings under Art.226 of the Constitution of India, a parent, guardian, or other person who is legally entitled to the custody of a child can regain that custody when he or she is wrongfully deprived of his or her lawful custody. The Full Bench observed: "In using the writ of habeas corpus for the custody of infants the jurisdiction exercised by the court in deciding whether the custody should be entrusted with one or other of the contesting parties depend not on the legal right of one of those parties to the custody of the child but as to whether in the best interests and welfare of the child the custody should be entrusted with one of the other the jurisdiction that we exercise when we decide on the question of custody of infants brought before this Court in habeas corpus proceedings is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular section in any special statute. In this view we consider that none of the provisions contained in the enactments, The Guardians and Wards Act, 1890, and "The Travancore Christian Guardianship Act, 1116" stand in the way of exercising our parens patriae jurisdiction arising in a case of this nature. Nothing in these enactments trammels such jurisdiction of the Court in any manner." The respondents submitted that it will cause great difficulty and serious trauma for the child if the child is now directed to be given to the custody of her father and that before passing such an order, this Court should consider the affection and care that a mother can give to the child and the fact that such care and affection cannot be given by the father or any of his relations. Counsel for the second respondent referred us several decisions to this effect and read over several illuminating passages from the Full Bench decision itself. We think, we need not quote those passages for the simple reason that we also feel that normally a mother can be Stowe the maximum affection and care to an infant child of six years old. It has to be noted that there is a sleeper effect of divorce and many years later in adolescence it may be triggered. Some children of divorced parents may not wish to marry; others may have a diminished capacity to act as good parents. We do not want to over-stress the effects or become alarmist, but we wonder how many parents, if they knew in advance the effect upon themselves and upon the children of the proposed separation and divorce might, just might hesitate to set the process in motion. The trouble about divorce is that it is the realisation of the needs of the individual over the needs of the family and children are left out of the picture. There is a selfish element attached to divorce and children ought to be put more firmly into the picture long before consideration of a question on divorce. The rights of the child are generally not recognised by parents in the breakdown of marriage. See Children in Society - Lord Justice Butler Sloss -- Current Legal Problems, 1989. 8. But there are certain special features to be considered in this case. The second respondent is a party to the agreement Ext.P1. This fact is admitted. But according to respondents 2 and 3, this agreement was executed under peculiar circumstances. Their case is that the agreement was executed in the presence of a Sub Inspector of Police. Further, it is stated that the terms of the agreement were agreed to by the respondents under threat and coercion and those terms cannot be given effect to, particularly the term regarding custody of the child. In fact counsel very strenuously argued that the case cannot be decided on the basis of the agreement. There is some difficulty in accepting this submission. Ext.P1 agreement was executed on 22-1-1991. Pursuant to the agreement it is admitted that the husband has withdrawn the case he filed against the wife and wife also has withdrawn the case against the husband. There is some difficulty in accepting this submission. Ext.P1 agreement was executed on 22-1-1991. Pursuant to the agreement it is admitted that the husband has withdrawn the case he filed against the wife and wife also has withdrawn the case against the husband. This was done since it was provided in the agreement. If the agreement came into existence on vitiating circumstances, it is impossible to believe a follow up action on the part of both parties. The fact that the custody of the child was given to the father and the above circumstance shows that the agreement was acted upon by the parties. Further it was to be noted that respondents 2 and 3 did not demur and register their protest against the agreement. From the date of the agreement till 13-9-1992, the custody of the child was with the father who is the natural guardian. The case of respondents 2 and 3 is that the child expressed her desire to be with the mother and so the child was taken by the mother from Quilon where the child was residing with her father's sister. The father-petitioner in this case got a different case. According to him, the child was taken from his house in his absence and against the protest of his mother. We cannot decide that question without more details and evidence. Nevertheless we hold that the child was taken by the mother without the consent of the father at a time when the child was in his lawful custody. Counsel for the respondents wanted to submit that at the time when the child was taken, the child was not in the custody of the father since the child was in the residence of the petitioner's sister. This argument cannot be accepted at all. It is significant that the mother has no suggestion of a case that she took the child with the consent of the father's sister. The sister is only an agent for the father and really the child was in the custody of the petitioner-father. This aspect of the matter has been clearly stated in a decision reported in Varadarajan v. State of Madras, AIR 1965 SC 942. The sister is only an agent for the father and really the child was in the custody of the petitioner-father. This aspect of the matter has been clearly stated in a decision reported in Varadarajan v. State of Madras, AIR 1965 SC 942. The apex Court observed: "Even where the minor girl is kept by her father at the house of his relative, she still continues to be in the lawful guardianship of the former." So this is a case where the child was taken without the consent of the father who had rightful legal custody of the child at the time when she was taken. Whether in such acase the Court can direct restoration of the child to the custody of the father is the main question that we have to decide in this case. We feel that it is safe to follow in this matter the direction of the Full Bench decision reported in Maggarate Maria v. Dr. Chacko, 1969 KLT 174 to resolve this question. In the Full Bench decision, this Court has quoted the English decision in RE.H. (infants) reported in 1966 (1) AII.E.R.886: "it is the duty of all courts in all countries to do all they can to ensure dial the wrongdoer does not gain an advantage by his wrongdoing." The learned Judge Cross, J. went on to observe: "That, I think, would be the ordinary common-sense approach of anyone in the absence of authority." Another decision referred to in the Full Bench decision is that of Harman, L.J. in Re. T. (infants) reported in 1968 (3) AII.E.R.411 wherein it is observed: "At the out set of his judgment, after expressing his concern at what he described as the growing tendency, which has recently been apparent, of kidnapping children in this way and removing them from the jurisdiction of a foreign court, the judge proceeded as follows: 'The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. The substitution of self help for due process of law in this field can only harm the interests of wards generally, and a judge should, as Isee it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child'. The substitution of self help for due process of law in this field can only harm the interests of wards generally, and a judge should, as Isee it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child'. First of all, I would like to say, by way of comment on that passage, that I wholly agree with, and would wish to support, everything that the judge said about the duty of all courts not to countenance behaviour of the kind there referred to." (emphasis supplied) It has to be remembered that under Muslim law, the natural and legal guardian is the father. Of course, under S.352 of the Principles of Mahomedan Law, 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 unless she marries a second husband in which case the custody belongs to the father. But the custody of an infant child is different from guardianship of a minor. This aspect of the matter has to be considered as important in this case also. In Ismail Aboobaker v. State, AIR 1968 Ker. 21, Mathew, J. (as he then was) had occasion to highlight this distinction. His Lordship observed: "The right of the mother to the custody of the minor child is something different from the right of the lawful guardian. The right is subject to the superior right of lawful guardian." In this case the superior right vests with the petitioner-father. The Privy Council in Imambandi v. Haji Mutsaddi, AIR 1918 P.C.11 observed: "Thus it is quite evident from this passage that the father is the primary and natural guardian of his minor children, and that the right of custody of the mother and the female relations mentioned above are subject to the supervision and control of the father to which he is entitled by virtue of his natural guardianship of the infant. If that be so, the right of hizanat does not confer upon the mother all the powers of a guardian of the person of a minor under the Guardians and Wards Act, 1890." In "Outlines of Muhammadan Law" by A A. Fyzee, 3rca Edn it is observed: "The custody of an infant child belongs to the mother; this right is known as hidens (loosely spelt in India Hizanat). 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.... The mother is, of all persons, the best entitled to custody of her infant child during marriage and after separation from her husband, unless she be an apostate, or wicked, or unworthy to be trusted. Although the mother has the custody of a child of tender years, this does not imply that the father has no rights whatever." 9. Counsel for the petitioner submitted that this Court has to take significant note of the fact that in this case the mother of the child wilfully abdicated her solemn obligation of taking care of the child and left it to the father by executing Ext.P1 agreement. The reality is that in many cases one parent, for a variety of reasons, disappears from his/her life. But for many children ii may be devastating to lose for ever a loved parent. The mother now says that the agreement was executed under compelling circumstances. We do not want to pronounce finally on this aspect of the matter. Nevertheless we feel that prima facie this agreement which was executed with her brother also as one of the signatories to the agreement has been acted upon by the parties. It is to be noted that as per this agreement, the child was given custody to the father for a considerable period of more than one year and the mother suddenly developed a desire to have custody and resorting to self help and not resorting to any court of law for getting custody of the child is a conduct which cannot be encouraged. The substitution of self help for due process of law in the matter of custody of a child cannot be considered as for the best interest of the child, nor such a procedure can be encouraged to ensure a wrong doer to gain advantage by his/her wrong doing. The substitution of self help for due process of law in the matter of custody of a child cannot be considered as for the best interest of the child, nor such a procedure can be encouraged to ensure a wrong doer to gain advantage by his/her wrong doing. That is what has been stated by all the Courts, both by the Indian Courts and by the English Courts. 10. Counsel for {he respondents submitted that under the agreement, the custody of the child was given to the father with an unwritten understanding that the child will be kept at Trivandrum. Such a case is not specifically pleaded in the counter affidavit. assuming that it is so, the mother did not show any protest or did not take any action when the child was admitted in a school al Quilon and was allowed to reside with the petitioner's sister. This arrangement continued for more than one and a half years. At one stage it was stated that the mother did not see the child when the child was at Ouilon. Of course, from the statements there is some equivocation on the part of the mother on this aspect of the csa Counsel submitted that the mother used to meet the child at Quilon, though not in the residence of the petitioner's sister. It is pointed out that the mother's two sisters are at Quilon and she used to go to those sisters house and it was there she used to meet the child. At any rate, if this is true, she came to know about the fact that the child was at Quilon for a period of more than one and a half years. There is no tangible and specific explanation for not taking any action for implementing the unwritten understanding that the child will not be transferred from Trivandrum to any other place. The conduct of the mother in entrusting custody and protection of the child to the father is not a conduct, which is expected of a mother even though she now says that it was done on account of certain peculiar circumstances, which have not been explained convincingly. 11. In this connection, counsel for the petitioner referred us to S.354 of the Principles of Mahomedan Law by Mulla. S.354 says: "Females when disqualified for custody. 11. In this connection, counsel for the petitioner referred us to S.354 of the Principles of Mahomedan Law by Mulla. S.354 says: "Females when disqualified for custody. --A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody (1) (2) (3) (4) if she neglects to take proper care of the child." The removal of the child from the custody of the father in a wrongful act. Though we do not want to hold that it will amount to kidnapping, we are certain that what has been done by the mother is a wrongful act by which she cannot gain an advantage in this case. In fact even if it is enticing the child and asking the child to go along with the mother, it may amount to kidnapping. S.361 of the Indian Penal Code, 1860 reads thus: "Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any other person of unsound mind, out of the keeping of the lawful guardian of such minor, or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." Admittedly, the child was taken without the consent of the guardian-the petitioner. As regards this aspect, there is absolutely no dispute. In the circumstances we feel that what has been done by the mother is wrongful and this Court cannot encourage or tolerate such an action. In this view, we have to say that even though the child is now with the mother, the mother has not got the rightful custody. She is keeping wrongful custody of the child and such a state of affairs cannot be allowed to be continued when the matter has been brought before the Court and so we have to order that the child be returned to the petitioner-father. 12. Since counsel for respondents 2 and 3 insisted that we must ascertain from the child her wishes in the matter, we called the child to the Chambers and put some questions to her. The child's perspective and views, as well as the adult appreciation of their needs, ought to be considered at all times and they ought always to be treated as people and not as objects of concern. The child's perspective and views, as well as the adult appreciation of their needs, ought to be considered at all times and they ought always to be treated as people and not as objects of concern. When the wishes and views of the children are taken into account, judges and parents must try to do what is right, which may not be at all what the children want. The children cannot have the last word. Indeed if the voice of the child is increasingly heard, our courts may find themselves in the position of protecting some parents with the manipulations they do with their children (vide Children in Society -Lord Justice Butler Sloss). On a talk with the child, we got the impression that the child was very happy at Quilon. We are of the view that the father and father's sister are bestowing due care, affection and attention for the best interest of the child. We feel that the welfare and the best interest of the child is well protected by the father. Though we are not relying very much on what the child has stated considering her age, the impression we got is that the child was taken from the house of the petitioner and not from the petitioner's sister's house at Quilon, as stated in the counter affidavit of the mother. 13. In making this order, we feel that it is our obligation to say that we have taken into consideration the feelings of the mother and we hold that though she has committed this wrongful act, she is not debarred from approaching the court under the Guardians and Wards Act for getting custody of the child and the court can consider all aspects of the matter untrammelled by what ever we have stated in this order. Further, we direct that if possible, the father should see that the child is admitted in a school at Trivandrum this year itself. At any rate, the child should be admitted in a school at Trivandrum for the next academic year and if it is not done, the matter can be brought to the notice of this Court and this Court can pass appropriate orders. We direct that the child should be given to the father immediately. Though it is mentioned in the agreement, we repeat that the father should give all opportunities to the mother to meet the child. We direct that the child should be given to the father immediately. Though it is mentioned in the agreement, we repeat that the father should give all opportunities to the mother to meet the child. In the agreement though it is stated that the mother can meet the child in the presence of mediators, we fell that it is unnecessary. Of course, if the mother wants, she can take mediators also. We further direct that the father shall allow the child to be taken by the mother during the Onam holidays and the child can spend the Onam holidays with the mother. Also the father should allow the mother to take the child to spend the Christmas holidays with her. In regard to the summer holidays, the child can spend the first half of the holidays with the mother and the later half with the father. When the child is admitted in a school at Trivandrum, the father must allow the child to be left with the mother on all Sundays. The Original Petition is disposed of as above.