# Abdia Arif (Minor) D/O Mohd. Shan Arif v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 1404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-31
- **Case number:** Habeas Corpus Writ Petition No. 810 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdia-arif-minor-d-o-mohd-shan-arif-v-state-of-u-p-ors-51593
- **Pages:** 4

## Headnote

Habeas Corpus - Guardians and Wards Act,
1890 - Sections 7, 17, 25 - Family Courts
Act, 1984 - Section 7 - Muslim Personal Law -
Petition filed on behalf of a 7-year-old minor girl
seeking
release
from
custody
of
her
grandmother and uncle (respondent nos. 4 and
5) after father's death (16.07.2020) and
mother's remarriage (11.09.2022). Mother, who
left the child with respondents, filed a custody
case (Case No. 92/2023) under Guardians and
Wards Act, 1890, pending before Family Court,
which granted interim visitation rights. Under
Muslim Personal Law (Mulla, Principles of
Mahomedan Law, Sections 352, 354), mother is
entitled to custody (hizanat) of a female child
until puberty, but loses this right upon
remarriage to a stranger, with right reviving
upon dissolution of such marriage. Habeas
corpus not entertainable as custody with
respondents not prima facie illegal, and welfare
of the child is paramount. Court declined to
exercise
extraordinary
jurisdiction
due
to
disputed
facts
and
pending
custody
proceedings, directing parties to agitate claims
before Family Court. Petition dismissed without
prejudice to pending guardianship proceedings.
(Paras 7-24)

Petition Dismissed.

Case Law Cited:

## Text

1404 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) there was no chance of the
petitioner/detenue being released on bail in
the cases in which he was punitively
detained;

(iii) the petitioner was not given
the assistance of lawyers/amicus curiae
when the State was given the assistance of
law officers;

(iv) a stale event was taken into
consideration for the invocation of the
provisions of National Security Act; and

(v) the Union of India had
delayed the decision on the representation
sent by the petitioner.

29. However, we have dealt with all
the issues raised in the case as were argued
at length by learned counsel for the
petitioner and also we felt that a decision
on all the points had to be given.

30. We may reiterate that a finding
on just any of the above issues in favour of
the detenue would have resulted in the
issuing of a writ of habeas corpus and
thereafter the release of the detenue.

31. The writ petition is, accordingly,
allowed. The order dated 03.12.2023 which
was confirmed on 03.01.2024, for the
reasons stated above is, therefore, set aside.
The petitioner-Kamalveer Singh (detenue)
be set at liberty unless he is required in any
other case.
----------
(2024) 3 ILRA 1404
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 810 of 2023
Abdia Arif (Minor) D/O Mohd. Shan Arif
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohammad Sadab Khan

Counsel for the Respondents:
G.A., Sri Suresh Kumar Gupta

Habeas Corpus - Guardians and Wards Act,
1890 - Sections 7, 17, 25 - Family Courts
Act, 1984 - Section 7 - Muslim Personal Law -
Petition filed on behalf of a 7-year-old minor girl
seeking
release
from
custody
of
her
grandmother and uncle (respondent nos. 4 and
5) after father's death (16.07.2020) and
mother's remarriage (11.09.2022). Mother, who
left the child with respondents, filed a custody
case (Case No. 92/2023) under Guardians and
Wards Act, 1890, pending before Family Court,
which granted interim visitation rights. Under
Muslim Personal Law (Mulla, Principles of
Mahomedan Law, Sections 352, 354), mother is
entitled to custody (hizanat) of a female child
until puberty, but loses this right upon
remarriage to a stranger, with right reviving
upon dissolution of such marriage. Habeas
corpus not entertainable as custody with
respondents not prima facie illegal, and welfare
of the child is paramount. Court declined to
exercise
extraordinary
jurisdiction
due
to
disputed
facts
and
pending
custody
proceedings, directing parties to agitate claims
before Family Court. Petition dismissed without
prejudice to pending guardianship proceedings.
(Paras 7-24)

Petition Dismissed.

Case Law Cited:

1. Ujaif @ Noor Alam Vs St. of U.P., (not
specified in detail) (Para 20)

2. Master Mahib Sajjad Masood Vs St. of U.P.,
(not specified in detail) (Para 20)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)
3 All. Abdia Arif (Minor) D/O Mohd. Shan Arif Vs. State of U.P. & Ors.
1405

1. Heard Sri Mohammad Sadab Khan,
learned counsel for the petitioner, Sri
Pankaj Saxena, learned AGA-I appearing
for the State-respondents and Sri Suresh
Kumar Gupta, learned counsel appearing
for the respondent nos.4 and 5.

2. The present petition seeking a writ
of habeas corpus has been filed on behalf
of the petitioner, a minor of age about
seven years.

3. The facts of the case as pleaded in
the petition are that the father of the corpus,
Mohammad Shan, died in a road accident
on
16.07.2020
and
thereafter,
on
11.09.2022, the mother, Zubairiya Shan,
solemnized a second marriage with one
Mohammad Siraj. The petitioner-corpus, at
the relevant point of time, was in custody
of the respondent nos.4 and 5 (mother and
brother of the deceased father of the
corpus, respectively).

4. It is sought to be contended that
mother had been assured by the respondent
nos.4 and 5 that the custody of the
petitioner-corpus would be handed over to
her in due course.

5. It has been pleaded in the petition
that Case No.92 of 2023 (Smt. Zubairiya
Shan Vs. Smt. Akhtari Begum and others),
under Sections 25 of the Guardians and
Wards Act, 18901 and Section 7 of the
Family Courts Act, 1984, was instituted by
the mother of the corpus, seeking her
custody, and the same is pending.

6. A counter affidavit has been filed
on behalf of the respondent nos.4 and 5
wherein it is asserted that the proceeding
under Section 7/10 of the GWA, bearing
Case No.250 of 2022 (Smt. Akhtari Begum
Vs. Smt. Zubairiya Shan), is pending
wherein upon an application by the mother,
the Family Court has granted visitation
rights as an interim measure.

7. It is not a case of the mother, Smt.
Zubairiya Shan, that the custody of the
petitioner-corpus, at any point of time, was
forcibly taken away from her by the
respondent nos.4 and 5. Rather, it is her
own case that when her second marriage
was solemnized, she on her own, left the
petitioner-corpus in the custody of the
respondent nos.4 and 5.

8. The law relating to guardians and
wards is governed in terms of the GWA
and an order with regard to guardianship
upon an application filed by a person
claiming entitlement may be passed under
the aforesaid enactment.

9. Section 17 of the GWA relates to
matter to be considered by the Court in
appointing 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 the minor.
Thus, the provisions of the personal law are
to be applied consistently with the
provisions of the GWA.

10. 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.

11.

The
matters
relating
to
"Guardianship of Person and Property" are
provided under Chapter XVIII of Mulla,
Principles of Mahomedan Law2 and Part-A
thereof
pertains
to
"Appointment
of
Guardians". In terms of Section 349, all
applications for the appointment of a
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
guardian of the person or property or both
of a minor are to be made under the GWA.
Further, Section 351 of Mulla, 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.

12. The subject matter relating to
"Guardianship of a Person of a Minor" is
dealt with under Part-B of Chapter XVIII
of Mulla, Principles of Mahomedan Law,
and the right of mother to the custody of
infant children is governed under Sections
352 and 354 thereof, which 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, unless she marries a
second husband in which case the custody
belongs to the father.

354. 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) if she marries a person not
related to the child within the prohibited
degrees (260-261), e.g., a stranger, but the
right revives on the dissolution of 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."

13. The aforesaid provision indicates
that the mother is entitled to the custody
(hizanat) of her female child until she has
attained puberty. This right continues
though she is divorced by father of the
child, unless she marries a second husband
in which case the custody belongs to the
father.

14. The disqualifications effecting
females are contained under Section 352
which, inter alia, provides that a female,
including the mother, who is otherwise
entitled to the custody of a child, loses the
right of custody, if she marries a person not
related to the child within the prohibited
degrees, e.g. the stranger, and the right
revives on the dissolution of marriage by
death or divorce.

15. The claim with regard to the
custody of the petitioner-corpus, by her
mother, if any, would accordingly, have to
be examined in the light of the facts of the
case and on the basis of the aforestated
legal propositions, in proceedings instituted
before the appropriate forum.

16. 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.

17. 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.
3 All.Hasan Raza @ Taiyab through its Mother Shahnaj (Corpus) & Anr. Vs. State of U.P. & Ors. 1407
The principle is well settled that in such
matters the welfare of the child is of
paramount consideration.

18. 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.

19. 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.

20. The legal position in this regard
has been considered by this Court in recent
judgments in Ujaif @ Noor Alam and
others Vs. State of UP and others3 and
Master Mahib Sajjad Masood and
another Vs. State of UP and others4.

21. In the present case, the material
on record, prima facie, does not suggest
that the petitioner-corpus has been illegally
detained by the respondent nos.4 and 5.

22. Having regard to the aforesaid,
the present petition for a writ of habeas
corpus would not be entertainable.

23. The petition stands dismissed
accordingly.
24. The dismissal of the petition
would not preclude the parties from
agitating their rights with regard to
guardianship and custody before the court
concerned where the matters are stated to
be pending.
----------
(2024) 3 ILRA 1407
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 983 of 2023

Hasan Raza @ Taiyab through its Mother
Shahnaj (Corpus) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Brijesh Kumar Pandey

Counsel for the Respondents:
G.A.

Habeas Corpus - Child Custody - Parents
Patriae Jurisdiction - Welfare of Minor -
Petition filed by mother (petitioner No. 2)
on behalf of minor son (petitioner No. 1,
corpus) alleging illegal custody by father
(respondent No. 3) since 28.04.2023.
Mother, living separately at her maternal
home due to strained marital relations,
lodged FIRs against father (Crime No.
185/2019 under Sections 498-A, 323, 506
IPC, 3/4 D.P. Act, 4/3 Muslim Women Act;
Crime No. 103/2023 under Sections 420,
34 IPC). Father, a labourer, claimed
willingness
to
reconcile,
but
mother
refused to return to matrimonial home.
Corpus, attached to father, was in his
custody. Court, exercising parens patriae
jurisdiction, held that habeas corpus is
entertainable only if custody is illegal and
against the minor's welfare. No evidence