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2018 DIGILAW 1800 (JHR)

Shahnaz Beghum v. State of Jharkhand

2018-08-09

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : The children have been produced by the Respondent No.7 from his custody. A counter affidavit has been filed by the Respondent No.7 as well. Reference has been made to the provision of Mahomedan Law under Chapter XVIII, Guardianship of Person and Property, Section 351 and 352 thereof. 2. The affidavit of Respondent No.8 and 9 reveals that passport of these two children have been re-issued by the Patna Office on application made by the Respondent no.7 with a declaration that the passports were lost; sanha was lodged in respect thereto and mother is living abroad. The affidavit also encloses Office Memo dated 10.03.2017 (Annexure-P/1), which has clarified the notification dated 26.12.2016 on the subject of attestation of Annexure-D by the Missions abroad. According to it, in case of the other parent residing at abroad, in view of the liberalization of the Passport Rules, the requirement of attestation/notarization of the Annexures has been done away with. As such application of minor applicant for issuance of passport may be processed by the Regional Passport Offices on producing self-attested Annexure C/D and other required documents, as the case may be. 3. Learned A.S.G.I submitted that in case information furnished by Respondent no.7 for re-issuance of passports of the minor children is found to be false, appropriate action as per the provisions of The Passport Act, 1967 and in accordance with law may be taken. 4. Learned counsel for Respondent no. 7 has taken us through the chronology of facts as asserted by him in order to show that the children were taken away by him from the custody of the mother-in-Law, while he was in India after having returned from Sharjah on 26/27.02.2018. He had come to Ranchi and Bokaro on 02.03.2018. He submitted that welfare of the children is being taken care of by the father and they are well and happy in his custody. Welfare of the children being paramount in the matters of custody, the claim of the petitioner for production or return of children to her custody from the custody of the father should not be allowed. The Boy Zaki Ahmed Reza is aged 11years while the Girl Ayiza Kalim Ahmed is 9 years old. Reference is again made to the provision of Section 351 and 352 of the Mahomedan Law. 5. The Boy Zaki Ahmed Reza is aged 11years while the Girl Ayiza Kalim Ahmed is 9 years old. Reference is again made to the provision of Section 351 and 352 of the Mahomedan Law. 5. Learned counsel for the petitioner has refuted each of the allegations of facts asserted by Respondent no.7. He submits that the defence built up by Respondent no.7 is not credible. He has taken the custody of the children through Respondent no.5 and 6 by indulging in misrepresentation and falsehood. The children were taken out of the Country despite an order of production passed on 13.06.2018 by this Court. Respondent no. 5 and 6, the father-in-law and brother-in-law of Respondent no.7 had appeared before this Court at that time. Children might have been brought under influence of the father during this period of 5 months. Petitioner is a working lady employed as Teacher in Government School at Bargain, Ranchi. The conduct of Respondent no. 7 does not entitled him to claim custody of the children. 6. We have considered the submission of learned counsel for the parties and taken note of the relevant material facts pleaded. There are two aspects of the matter, one related to claim of custody of minor children between the father and the mother, the other being the conduct of Respondent no.7 in getting the passports reissued from the Regional Passport Office, Patna on certain declarations, which may be a subject of inquiry. Custody of the children between the parents is a matter which can be dealt with by the competent Court in accordance with the provisions of Mahomedan Law and the Guardians and Wards Act, 1890 by adjudication on issues of facts and law as well. 7. At this stage, this Court, in seisin of the petition seeking issuance of writ of Habeas Corpus, would like to be satisfied on the immediate welfare of the children and whether the custody of the children in the hands of the father or in the hands of the mother would be proper or not, keeping in mind the paramount interest of the welfare of the children. Children have been apparently in custody of the father for about 5 months by now. Children have been apparently in custody of the father for about 5 months by now. We, therefore, consider it proper to have an expert opinion from a trained counsellor about the state of mind of the children and also all related issues which could give an inkling about the well being of the children in the present custody of Respondent no. 7. 8. Respondent no.7 is therefore directed to produce the children before the learned Member Secretary, JHALSA on 13.08.2018 at 10.30 a.m. Learned Member Secretary, JHALSA is directed to procure services of a trained counsellor/expert from Central Institute of Psychiatry, Ranchi. The Counsellor would independently interact with the children and also separately with the father and the mother and a report be submitted to this Court. Respondent no.7, father shall not leave the Country nor shall the children. Proper steps in that regard would be taken by Respondent no. 8 and 9 9. Let the case appear on 16.08.2018. Till then children shall remain in the custody of Respondent no.7, who shall be responsible for their well being. Let the instant order be communicated to the learned Member Secretary, JHALSA forthwith. Let a copy of this order be handed over to learned ASGI by tomorrow. Order accordingly.