Judgment :- Janarthanam. J. One Dr. Nasheeda J. Bhavnagarwala (Pettioner)resoted to the present action, praying for issuance of a writ of Habeascorpus or any other appropriate writ, directing the respondents to producethe corpus or body of her minor son Mustafs aged 4 years now in the custody ofthe third respondent before this Court and hand over him her, claiming to be themother and natural guardian. 2. The first respondent is the Commissioner of Police, Madras-8, whilethe secon respondent is the Inspector of Police, F-2 Egmore Police Station,Madras. The third respondent one Mr. Asif T. Khan Bhai, a resident of Bhav Nagar,Gujarat is none-else than the petitioner and the third respondent, it is said,was celebrated on 1st March, 1989 and thereafter, the spouses lived in BhavNagar, 199, Vijayaraj Nagar, Ravindru, Gujarat. The petitioner wife wouldclaim constant ill-treatment meted out to her at the hands of the thirdrespondent, her husband and consequently, she was forced to leave him in march,1994 along with her minor so Mustafa, who was then 11/17, Sulaiman ZakariaAvenue, Egmore, Madras-8. The petitioner pursued her higher studies in the senseof her joining M.D. course in Sri Ramachandra Mustafa, she would claim had beenstudying in L.K.G. in Don Bosco School, Egmore Madras. 3. While so, on 111. 1996, her father left for Mecca for pilgrimage.The third respondent, her husband, it is said, come on 111. 1996 and statedquarrelling with her and her mother upto 7.45 P.M. Suddenly, he was stated to have caught hold of her son and left the house in a car and the efforts she and her mother made in preventing her husband, the third respondent from taking away her son, aged 4 years proved futile. Immediately, it is said, she gave a complaint to the second respondent, who in turn, registered a case in Crime No.2295 of 1996 for an alleged offence under Sec.364, I.P.C. (Sic.) 361, I.P.C. 4. The further attempts made in tracing the alleged detenu her minor son proved futile. It is in the back drop of such a situation, she was impelled to resort to the present action, seeking the relief as aforesaid. 5. Mr.Habibulla Badsha, learned senior counsel, representing Mr.M.A. Kalam, appearing for the petitioner advanced arguments for issuance of a rule nisi to the respondents. It is in the back drop of such a situation, she was impelled to resort to the present action, seeking the relief as aforesaid. 5. Mr.Habibulla Badsha, learned senior counsel, representing Mr.M.A. Kalam, appearing for the petitioner advanced arguments for issuance of a rule nisi to the respondents. The said learned senior counsel was required by us to advance arguments on the question of maintainability of the present action and he, in fact, as required by us, advanced arguments in that regard. The said learned counsel commenced his arguments in a flamboyant style by stating that the existence of an alternative remedy under Sec. 17 of the Guardian and Wards Act, 1890 is no bar at all and the petitioner shall be entitled to knock at the extraordinary jurisdiction of this Court under Art.226 of the Constitution of India when especially the alternative remedy provided for in respect of the nature of the relief as sought for in this action is not efficacious. He would further contend that the act of the third respondent-husband in removing the custody of the alleged minor detenu, aged 4 years from his mother petitioner is illegal and therefore, the present action praying for the issuance of a writ of habeas corpus is maintainable. 6. The twin-fold arguments of the said learned senior counsel may now fall for consideration in the arena of discussion. Admittedly, the parties spouses are Mohamedans, and they are governed by personal law relatable to the custody of minor children male of female. Sec.352 deals with deals with the right of the mother to custody of infant children. According to the said Section, 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. 7. Sec.354 deals with the circumstances under which females are disqualified for custody. 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. 7. Sec.354 deals with the circumstances under which females are disqualified for custody. The Section reads as under: ‘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 (Secs.260-261), e.g., a stranger but the right revives on the dissolution of the marriage by death or divorce; or, .(2) if she goes and resides, during the subsistence of the marriage, at a distance from the father’s place of residence; or, .(3) if she is leading an immoral life, as where she is a prostitute’ or .(4) if she neglects to take proper care of the child. 8. Sec.357 deals with the right of the father and paternal male relations to custody of boy over seven and of girl, who has attained puberty. The Section reads as under: The father is entitled to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given in Sec. 355 above, and subject to the proviso to that section. If there be none of these, it is for the Court to appoint a guardian of the person of the minor. 9. Sec.359 deals with legal guardians of property and it reads as under: The following person are entitled in the order mentioned below to be guardians of the property of a minor: .(1) the father, .(2) the executive appointed by the father’s will; .(3) the father’s father. .(4) the executor appointed by the will of the father’s father. .10. The principles propounded in these sections cannot, however, be read in isolation and divorced from the provisions of the Guardian and Wards Act which vests in the court a discretion to direct the return to the custody of a guardian a ward, who leaves or is removed from his custody in appropriate cases where the Court thinks that such a direction is necessary for the well being of the ward. Where the dictates of personal law indicate one course of action and considerations of the welfare of the minor indicate another, the former must be subordinated to the latter. The words that furnish a key to the correct legal position are to be found in Sec.17 of the Guardian and Wards Act. Principles of personal law must be applied subject to the provisions of the said section. In other words, if there is a conflict between the personal law to which the minor is subject and considerations of his or her welfare, the latter must prevail. The position, as stated above, is the settled law. 11. In the back drop and setting of the legal principles, as stated above, let us now delve deep to consider the twin facts of the arguments of the said learned senior counsel. .12. The second facet of the submissions of the said learned senior counsel may be taken up now for consideration and discussion. The terminology ‘guardian ship’ is rather a comprehensive concept, which takes in its fold custody also and the terms ‘custody’ cannot at all be equated to guardianship. It is only the taking or enticing of any minor under sixteen years of age if a male or under eighteen years of age, if a female, out of the keeping of the lawful guardianship will constitute an offence of kidnapping as defined under Sec.359 of the Indian Penal Code and punishable under Sec.361 of the Indian Penal Code. Such being the case, even assuming for argument sake that the act of the third respondent father in taking or removing the alleged detenu minor Mustafa from the custody of the petitioner, can be no stretch of imagination be stated to be an offence under Sec.361 of the Indian Penal Code. Such being the case, it cannot at all be stated that the custody of the alleged minor detenu by the third respondent-father will amount to illegal custody. No doubt, true, it is, under the personal law of the parties-parties being Mohamedans the petitioner mother is entitled to custody of the alleged minor Mustafa till he completes seven years of age, as contemplated by Sec.352 as stated above. Likewise, the third respondent father is entitled to the custody of the alleged detenu Mustafa ever seven years of age. No doubt, true, it is, under the personal law of the parties-parties being Mohamedans the petitioner mother is entitled to custody of the alleged minor Mustafa till he completes seven years of age, as contemplated by Sec.352 as stated above. Likewise, the third respondent father is entitled to the custody of the alleged detenu Mustafa ever seven years of age. The custody of the alleged detenu, as stated above, will be available to the petitioner-mother and the third respondent father under Mohamedan Law. It is not as if the custody of the alleged minor Mustafa either by the petitioner-mother upto seven years or by the third respondent-father ever seven years is absolute in all eventualities and circumstances. The rights of either the petitioner mother of the third respondent father to the custody of the alleged minor detenu Mustafa may be deprived by consideration of questions of welfare of the minor. If the Paramount welfare of the minor, the alleged detenu demands the custody to be given to some other person, it can be so done under the salient provisions adumbrated under Sec.17 of the Guardian and Wards Act. On the salutory and settled principles of law, where the dictates of personal law indicate one course of action and considerations of the welfare of the minor indicate another, the former must be subordinated to the later. 13. The facts as averred in the affidavit filed in support of the petition, if sifted and scanned on a broad-spectrum analysis, would point out in a clear cut fashion, that a yawing gap is developing in the matrimony of the spouses, possibly leading to the ultimate break down, and in such a situation, the spouses the petitioner wife and the third respondent husband are fighting with each other to the custody of the alleged minor detenu Mustafa. Such civil rights to the custody of the illegal minor, can very well be decided in a competent forum with case and grace on the evidence to be adduced by the respective parties. The paramount question of the welfare of the minor cannot at all be decided without adduction of the evidence in that regard. Admittedly, without taking evidence in that regard by this Court, the paramount question of the welfare and interest of the minor cannot at all be decided. The paramount question of the welfare of the minor cannot at all be decided without adduction of the evidence in that regard. Admittedly, without taking evidence in that regard by this Court, the paramount question of the welfare and interest of the minor cannot at all be decided. There is no pale of controversy that the jurisdiction under Art.226 of the Constitution of India is a summary one and normally evidence is not at all taken. If we take evidence in that regard and decide the matter, it will tantamount to conversion of this summary jurisdiction to one of a trial jurisdiction and if such being the case, there is no need at all for an alternative remedy provided under Sec.17 of the Guardian and Wards Act. In this view of the matter, the second facet of the submissions of the learned senior counsel for the petitioner has to face dismissal failure. .14. Let us now embark upon a discussion of the first facet of the said learned senior counsel as noticed above. The main thrust of the arguments here is that the remedy provided under Sec.17 of the Guardian and Wards Act is not as efficacious as the one provided under Art.226 of the Constitution of India. To such a submission, we are unable to affix our seal of approval on the facts and in the circumstances of the case. As already indicated, the question of paramount welfare and the interest of the alleged minor detenu Mustafa cannot at all be decided without taking evidence. The fact remains whether the action is instituted in this Court either under Art.226 of the Constitution of India or before the competent civil forum under Sec.17 of the Guardian and Wards Act, 1890, the ritualistic adherence to procedure prescribed for taking evidence cannot at all be avoided and such a feat as already indicated, is capable of being performed in the competent civil forum very well. It is not as if the interim remedy of custody of the alleged minor detenu, pending proceedings before the competent civil forum, cannot at all be obtained if such a situation warrants, taking into consideration the extreme tender age of the child longing for mother’s affection. It is not as if the interim remedy of custody of the alleged minor detenu, pending proceedings before the competent civil forum, cannot at all be obtained if such a situation warrants, taking into consideration the extreme tender age of the child longing for mother’s affection. Whatever remedy or relief that could be afforded to the petitioner by this Court under Art.226 is also capable of being given to her under Sec.17 of the Guardian and Wards Act, 1890. For the reasons as above, it cannot at all be stated that the remedy provided under Sec.17 of the Guardian and Wards Act, 1890 is not as efficacious as the one provided under Art.226 of the Constitution of India by issuance of a habeas carpus. 15. No doubt, the said learned senior counsel in support of his submission that the fact that the petitioner has a right to relief under Guardian and Wards Act was no justification for denying her right to move this Court under Art.226 of the Constitution of India, relied upon the decision of the Apex Court in the case of Cohar Begum v. Suggi alias Nazma Begum and others, A.I.R. 1960 S.C. 93. In that case the appellant is an unmarried sunni muslim woman. She has an infant female illegitimate child called Anjum. The appellant made an application to the High Court at Bombay under Sec.491 of the Code of Criminal Procedure for the recovery of the custody of the child from the respondents. That application was refused by the High Court. Learned Judges of the Bombay High Court while refusing the relief observed that the case raised the relief observed that the case raised various controversial questions, specially as to the paternity of the child, as to whether the respondent had made the appellant live in the keeping of different persons and also as to whether she had prevented the appellant from having access to the child. Learned Judges further observed that it was not the function of the Court in an application under Sec.491 to record findings on such controversial facts and that in these circumstances, the proper forum for the appellant was to move a civil court under the Guardian and Wards Act for the custody of the child. They also said that they were prima-facie satisfied that the child was not illegally and improperly detained by the respondents. 16. They also said that they were prima-facie satisfied that the child was not illegally and improperly detained by the respondents. 16. In repelling the rationale of the Bombay High Court, the Apex Court said in Paragraph 6 as below: “We are unable to appreciate the view of the learned Judges of the High Court. It seems to us that the controversial facts referred to by them were wholly irrelevant to the decision of the application. We have not been able to find one single fact relevant to the issue in this case which is in controversy. The facts, which are abundantly clear and beyond dispute are these. The child Anjum is the illegitimate daughter of the appellant, who is a moslem women. The child was at the date of the application less than six years’ old and now she is just over seven years old. The appellant is a singing girl by profession and so is the respondent. The appellant stated in her affidavit that the respondent was in the keeping of a man and this the respondent has not denied. It is not the respondent’s case that she is a married woman leading a respectable life. In fact she admits that she allowed Trivedi to live in her flat with the appellant as his mistress and took money from him for ‘lodging and Boarding Charges’. Trivedi has sworn and affidavit acknowledging the Paternity of the child and undertaking to bring her up properly as his own child. He is a man of sufficient means and the appellant has been for a considerable time living with him as his mistress." After stating the undisputed fact as above, the Apex Court in Paragraph 7 said as under: "on these undisputed facts the position in law is perfectly clear. Under the Mohamedan Law which applies to this case, the appellant is entitled to the custody of Anjum who is her illegitimate daughter, no matter who the father of Anjum is. The respondent has no legal right whatsoever to the custody of the child. Her refusal to make over the child to the appellant therefore resulted in an illegal detention of, the child within the meaning of Sec.491...” 17. From what has been stated above, it is rather crystal clear that the alleged detenu Anjum is the illegitimate daughter of the appellant. Her refusal to make over the child to the appellant therefore resulted in an illegal detention of, the child within the meaning of Sec.491...” 17. From what has been stated above, it is rather crystal clear that the alleged detenu Anjum is the illegitimate daughter of the appellant. Under Mohamedan Law as per Sec.358, the custody of the illegitimate children belongs to the mother and her relations alone and none-else. The facts of the instant case are quite different. The third respondent, as already stated, is none-else than the father natural guardian of the alleged detenu Mustafa. 18. We may point out here that existence of power is one thing and exercise of power is another thing. It does not mean that the fact that there is an existence of power, it has to be exercised always. The exercise of power is always guided by statutory principles and facts and circumstances, warranting such exercise of power. The jurisdiction under Art.226 no doubt, is very wide and such a power cannot at all be curtailed even by an enactment of a Parliament. The fact that this Court under Art.226 of the Constitution of India possessed enormous powers to decide any issue on earth does not mean that all actions and litigation in respect of which an alternative remedy had been provided under statues have to be allowed to be filed in this Court under Art.226 of the Constitution of India. If such a situation is allowed to happen, it is nothing but a collapse of the system itself. The Courts in this country have developed self-imposed restrictions as respects the exercise of power under Art.226 of the Constitution of India. Such self-imposed restrictions relate to existence of alternative remedy and what not. 19. Top of all, the marriage between the petitioner and respondent, No.3 is admittedly still subsisting and the petitioner now resides along with the alleged detenu a minor son, aged 4 years at Madras in her parents’ house far away from the matrimonial abode at Gujarat. This factor itself is sufficient for her to lose the right to custody of the alleged detenu her minor son, aged 4 years according to Sec.354(2) as stated above. 20. For the reasons as above, we are of the view that the present action H.C.P.No.1181 of 1996 deserve to be rejected as not maintainable and the same is, accordingly, rejected. This factor itself is sufficient for her to lose the right to custody of the alleged detenu her minor son, aged 4 years according to Sec.354(2) as stated above. 20. For the reasons as above, we are of the view that the present action H.C.P.No.1181 of 1996 deserve to be rejected as not maintainable and the same is, accordingly, rejected. It is, however, open to the petitioner to knock at the doors of the competent civil forum, praying for the appropriate relief.