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2024 DIGILAW 302 (ALL)

Master Mahib Sajjad Masood v. State Of U. P.

2024-01-29

YOGENDRA KUMAR SRIVASTAVA

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JUDGMENT : Hon'ble Dr. Yogendra Kumar Srivastava, J. 1. Heard Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra, learned counsel for the petitioners, Sri Pankaj Saxena, learned A.G.A.-I appearing for the State-respondents and Sri R. P. Rajan, learned counsel for the respondent Nos. 8, 9, 10 and 11. 2. The present habeas corpus petition has been filed primarily seeking the following relief:- "1. a writ, order or direction in the nature of mandamus directing and commanding all the respondent authorities as well as private respondents to produce Master Mahib Sajjad Masood the corpus before this Hon'ble Court to set at liberty forthwith and to give custody to his natural guardian - father (petitioner no.2) to secure his future." 3. Pursuant to the rule nisi issued earlier, the petitioner No. 1 (corpus), minor child of age about seven years, has been produced in Court by respondent No. 8, his mother. 4. Respondent No. 8 is present in Court and has been identified by her counsel, Sri R. P. Rajan. 5. The petitioner No. 2, Sajjad Hasan Masood, father of the petitioner no.1 (corpus), is also present in Court, and has been identified by his counsel, Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra. 6. Learned counsel appearing for the respondent No. 8 has stated that the amount as directed by the Court vide its order dated 21.12.2023 has been received by the said respondent. 7. Counsel for the parties do not dispute the fact that looking to the age of the child, it would be difficult to ascertain his wishes and accordingly the question with regard to his guardianship and custody would be required to be considered taking into view the entirety of the facts and circumstances of the case. 8. Learned A.G.A.-I, on the basis of an inquiry from the respondent No. 8, mother of the petitioner No. 1 (corpus), in Court, submits that she has stated that she is presently living at her maternal home. She has stated that she has a post-graduate degree and is capable of looking after her son, who is presently a minor, aged about seven years. She has stated that she was sent to her maternal home by her husband, on 3.06.2023, and thereafter she has not been taken back. She has stated that she has a post-graduate degree and is capable of looking after her son, who is presently a minor, aged about seven years. She has stated that she was sent to her maternal home by her husband, on 3.06.2023, and thereafter she has not been taken back. She has also stated that she is not averse to going back her matrimonial home, but her husband is not willing to take her back. As regards her minor son, she has stated that the child is going to school and is in good health. 9. Learned A.G.A.-I has also made an inquiry from the petitioner No. 2, in Court, and submits that he has stated himself to be in a government job. On a pointed query, he has expressed his unwillingness to take back the wife stating that there is already a talaq between them. 10. As per the pleadings in the petition, the respondent No. 8 (mother) is stated to have left her matrimonial home, on 02.06.2023, with all her certificates, jewellery and cash, alongwith her minor son, petitioner no.1 (corpus). 11. There is no material to suggest that the petitioner No. 1 (corpus) was forcibly taken away by the respondent No. 8. On the contrary, there is a clear assertion by respondent No. 8 that she was sent alongwith her minor son by the petitioner No. 2 to her maternal home and thereafter she has not been taken back. 12. The petitioner No. 2 (father of the corpus), has categorically stated that he is unwilling to take back the respondent No. 8 (mother of the corpus). 13. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890[GWA], and an order with regard to guardianship may be passed under the aforesaid enactment, upon an application filed by a person claiming entitlement. 14. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor. 15. 14. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor. 15. Section 17 of the GWA relates to matter to be considered by the court in appointing a guardian, and in terms thereof it is provided that the court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA. 16. It is common ground between the parties that insofar as the question of custody is concerned, their rights are to be governed by the personal law. 17. The matters relating to "Guardianship of Person and Property" are provided under Chapter XVIII of Principles of Mahomedan Law[Mulla, Principles of Mahomedan Law, 22nd Edition] and Part-A thereof pertains to "Appointment of Guardians". In terms of Section 349, all applications for the appointment of a guardian of the person or property or both of a minor, are to be made under the GWA. 18. Further, Section 351 of Principles of Mahomedan Law, which is in terms of Section 17 of the GWA, imposes a duty upon the court in appointing guardian to make the appointment consistently with the law to which the minor is subject, keeping in view the welfare of the minor. 19. The subject matter relating to "Guardianship of a Person of a Minor" is dealt with under Part-B of Chapter XVIII of Principles of Mahomedan Law, and Sections 352 and 353 thereof are extracted below:- "352. Right of mother to custody of infant children.— 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 (e), unless she marries a second husband in which case the custody belongs to the father (f). 353. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f). 353. Right of Female relations in default of mother.— 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." 20. A conjoint reading of the aforesaid provisions indicates that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years, and failing the mother, the custody of a boy under the age of seven years, belongs to the female relatives in an order under which the mother’s mother is shown first. 21. The custody of the petitioner No. 1, corpus (a male child aged about seven years), with the respondent No. 8 (his mother), cannot, therefore, be stated to be prima facie illegal. 22. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown. 23. The principal duty of the Court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The principle is well settled that in such matters the welfare of the child is of paramount consideration. 24. In child custody matters, habeas corpus proceedings may not be utilized to justify or examine the legality of the custody. The power of the Court in granting the writ is qualified only in cases where detention of a minor is by a person not entitled to his/her legal custody. 24. In child custody matters, habeas corpus proceedings may not be utilized to justify or examine the legality of the custody. The power of the Court in granting the writ is qualified only in cases where detention of a minor is by a person not entitled to his/her legal custody. For the exigence of a writ, it would be required to be proved that the detention of the minor child is illegal and without any authority of law, and that the welfare of the child requires that the present custody should be changed. 25. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate legal forum. 26. The legal position in this regard has been considered by this Court in a recent judgment in Ujaif @ Noor Alam and others Vs. State of UP and others, 2021 (4) ADJ 178 . 27. In the present case, the custody of the petitioner No. 1, corpus (a minor of aged about seven years), is presently with his mother. The material facts do not, in any manner, suggest that it is a case of illegal detention, and in view thereof, the present petition seeking a writ of habeas corpus would not be entertainable. 28. As regards the claim for custodial rights, it is always open to the parties to avail the appropriate remedy for the purpose before the proper forum. 29. The observations made hereinabove are prima facie in nature and the same would be without prejudice to the rights and contentions of the parties, which may be agitated in appropriate proceedings. 30. The rule nisi issued earlier is discharged. 31. The petitioner No. 1 (corpus), would go alongwith the respondent No. 8, to the place from where he has been brought. 32. The habeas corpus petition stands dismissed.