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2023 DIGILAW 570 (ALL)

Jaibunnnisha @ Jaiba v. State of U. P.

2023-02-27

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Heard Shri Syed Mohammad Abbas, learned counsel for the petitioner, Shri Saleem Ahmad, Advocate assisted by Shri Manoj Kumar, Advocate appearing for respondent No. 4 and learned A.G.A. for the respondent Nos. 1, 2, 3 and perused the material on record. 2. Instant petition has been filed by the petitioner No. 1 Smt. Jaibunnisha @ Jaiba for the minor son Areeb (corpus) under Section 226 of the Constitution of India against respondents with following prayer to: (i) Issue a writ, order or direction in the nature of Habeas Corpus directing the respondent Nos. 2 and 3 to produce the corpus namely Areeb, aged about 18 months, son of petitioner No. 1 from the illegal detention of respondent No. 4, before this Hon'ble Court and handed the custody of the corpus to the petition no. 1 forthwith. (ii) Issue any writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. (iii) Award the cost of the writ petition in favour of the petitioners. 3. Learned counsel for the petitioners submitted that the marriage of the petitioner No. 1 was solemnized with private respondent No. 4 Aafaq on 5.11.2018 in accordance with Sunni rites and rituals. The corpus- Areeb Aafaq was born out of their wedlock on 1.8.2021 through caesarean operation and entire expenses were borne by the parents of the petitioner as the petitioner was being harassed by her husband and in-laws on account of non-fulfillment of demand of dowry. In the night of 20.12.2022, her husband and in-laws engaged in Maarpeet with her, as a result of which she sustained injuries on her face and her hand. An F.I.R. was lodged by father of the petitioner, namely, Dilshad being case crime No. 657 of 2022, under Sections 498-A, 323, 504, 506, 328 I.P.C. and Section 3/4 D.P. Act at P.S. Garhmukteshwar, District- Hapur against her husband and in-laws. The police investigated the matter and on basis of medical report, Section 308 I.P.C. was added in penal sections. An F.I.R. was lodged by father of the petitioner, namely, Dilshad being case crime No. 657 of 2022, under Sections 498-A, 323, 504, 506, 328 I.P.C. and Section 3/4 D.P. Act at P.S. Garhmukteshwar, District- Hapur against her husband and in-laws. The police investigated the matter and on basis of medical report, Section 308 I.P.C. was added in penal sections. On 20.12.2022, the minor son of the petitioner No. 1 aged around 1 year 4 months at that time was snatched by respondent No. 4, the husband of the petitioner, and she filed a Civil suit being O.S. No. 18/2013 under Sections 7, 10(1) and Section 25 of Guardians and Wards Act before Principal Judge, Family Court on 30.1.2023. A copy of said case application under Section 12 of Guardians and Wards Act has been filed in which she has made prayer for restoration of custody of child to her, who is natural guardian under law. Respondent No. 4 also filed a civil suit being Suit No. 01 of 2023 under Section 25 of Guardians and Ward Act for the custody of minor child on 6.1.2023 with prayer for appointment of guardian of the child Areeb Aafaq, in which he has made false allegations against the petitioner No. 1 that she had deprived the child of his right of mother's milk and had left the child before her husband and mother-in-law and threatened that she will kill the child. He next submitted that in spite of filing the petition for seeking custody of the child, the same is pending before the Principal Judge, Family Court since long and till date no written statement has been filed by opposite party and in view of the slow pace of law, the corpus is being deprived of his right to be nourished and cared by his mother. The right to custody of a minor, being 18 months of age, vests in his mother i.e petitioner No. 1 as such, with a view to seek expeditious and effective remedy, the petitioner No. 1 has approached this Court. Respondent No. 4 has old parents who are vulnerable to take care of the child properly. It is settled law that in the matter of deciding custody of the child, the welfare of the child is of paramount consideration and nobody can ensure welfare of an infant child in comparison to his/her mother. Respondent No. 4 has old parents who are vulnerable to take care of the child properly. It is settled law that in the matter of deciding custody of the child, the welfare of the child is of paramount consideration and nobody can ensure welfare of an infant child in comparison to his/her mother. It is also settled law that in custody of minor, who is of 7 years of age, is with his mother ordinarily, therefore, snatching of the child by the father and his grand-parents from mother and continuing him in the custody of his father can be termed as illegal custody. Therefore it is prayed that custody of minor be provided to petitioner No. 1 who is his biological mother and natural guardian. 4. Per contra, learned counsel appearing for respondent No. 4 opposed the prayer made in present petition and submitted that the child is being properly taken care of by respondent No. 4 and his family members. Respondent No. 4 is natural guardian of the child, being his father and the petitioner No. 1 has herself deserted the child and left her matrimonial home out of her free will. The welfare of the child is safe and secure with respondent No. 4 and it acquires no change of custody. 5. Learned counsel for the petitioners further cited “Principles of Muslim Law” second edition, 2005 authored by Yawer Qazalbash that I have gone through the said legal text, in which at page 159, it is stated that under Section 4(1)(3) of Guardians and Wards Act, 1890 “minor” and “ward” are defined therein. Indian Majority Act referred for ascertaining who is minor, which contemplates that a person who has not completed age of 18 years is a minor. The author has observed after referring Order 32 of Code of Civil Procedure that normally a person is minor till he completes age of 18 years but if a guardian has been appointed for him before attainment of this age, then the minority will continue till the minor attains the age of 21 years. It is also observed therein that Islamic law considers attaining age of puberty or majority as same (but age of discretion is different) for a girl, she attains puberty at the age of 9 and in case of boy, it is 12 years. It is also observed therein that Islamic law considers attaining age of puberty or majority as same (but age of discretion is different) for a girl, she attains puberty at the age of 9 and in case of boy, it is 12 years. (“Hedeya” - 529, 530,) Shia law considers males attain puberty at 15 and females at 9. Amir Ali suggest that age of puberty for these purposes could be presumed as 15 years in both the case of males and females of both schools. At page 161, (Article 7) guardianship of a person (Hizanat) is provided wherein it is observed that in case where the boy under 7 years of age and a girl who has not attained puberty could be given in guardianship of females in preferential order as: 1. Mother 2. Mother's mother, how high so ever 3. Father's mother, how high so ever 4. Sister, preferential given to full sister 5. Sisters' daughter 6. Maternal aunts, in like order as sister 7. Paternal aunts, in like order as sister In default of above mentioned female relationship, guardianship could belongs to: 1. Father 2. Grand-father or nearest grand-father 3. Full brothers and so on? 6. On perusal of above preferential order of guardianship of minor which is based on Hedaya, the mother has preferential right of guardianship over father of the child, until the child is under 7 years of age. Therefore, in present case as child is admittedly below 2 years of age, the claim of guardianship and custody of mother is on high pedestal in comparison to father or any other relative of the child. 7. This Court is not expected to delve upon the merits of mutual offending allegations made by the contesting parties against each other but this fact is admitted that child is below two years of age and he is presently lying with his father and grand-parents and mother seeks his custody out of sense of motherhood as he requires maternal care and affection at present, keeping in view his tender age. Therefore, the paramount interest of minor demands that custody of child be given to petitioner No. 1, who is admittedly his biological mother and petitioner No. 1 has lodged an F.I.R. against her husband and in-laws with allegations of maltreatment, poisoning, demand of dowry and physical assault which is subject matter of investigation and trial. 8. Therefore, the paramount interest of minor demands that custody of child be given to petitioner No. 1, who is admittedly his biological mother and petitioner No. 1 has lodged an F.I.R. against her husband and in-laws with allegations of maltreatment, poisoning, demand of dowry and physical assault which is subject matter of investigation and trial. 8. Accordingly, the petition stands allowed. Both the contesting parties are resident of Garhmukteshwar, District-Hapur, U.P. the respondent No. 4 is directed to hand over the custody of the corpus Areeb Aafaq, the son of petitioner No. 1 and respondent No. 4 to petitioner No. 1 who is mother of the corpus, within 1 month from the production of certified copy of this order, in presence of responsible Police Officer of concerned Police Station. The C.J.M., Hapur will also ensure compliance of this order through respondent No. 2 S.S.P./S.P. Hapur, District- Hapur. 9. After the lapse of period of one month for handing over the custody of corpus to petitioner No. 1, as directed above, compliance report will be sent to this Court by C.J.M. Hapur, within 15 days. 10. Let a copy of this order be provided to learned A.G.A. for compliance. 11. A copy of this order be sent to Chief Judicial Magistrate, Hapur to ensure compliance, accordingly and without delay.