# Aisha (Minor) & Anr v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** Habeas Corpus Writ Petition No. 484 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aisha-minor-anr-v-state-of-u-p-ors-45215
- **Pages:** 12

## Headnote

(A) Criminal Law - Mulla's Mahomedan
Law - Section 352 - Right of mother to
custody of infant children, Section 353 -
Right to female relations in default of
mother, Section 354 - Females when
disqualified for custody,Section 355 -
Right of male paternal relations in default
of female relations , Section 359 - Legal
guardians of property - mother by the
personal law of parties is not the natural
guardian of the minor - Rather, it is the
father who is the natural guardian - under
the personal law of parties who are
Muslims - there is a distinction made
between the natural guardianship that is
with the father and the right to custody of
the minor that vests in the mother, until
the age of puberty in case of a minor girl -
In the case of a minor boy that right to
10 All. Aisha (Minor) & Anr. Vs. State of U.P. & Ors.
317
custody for a mother extends until the boy
turns seven years.(Para-13)

Petition filed for the issue of a writ of habeas
corpus - ordering respondent nos. 2,3 and 4 to
produce the detenue-petitioner no. 1, before the
Court - to set her at liberty by giving her into
the custody of the second petitioner, her father
and natural guardian - child is a two year old
girl - mother and the daughter as they appeared
before the Court seem to be inseparable - The
mother stays with her family comprising her
mother and brothers. (Para-1,18)

HELD:- Notwithstanding the fact that the
mother has been found better entitled to the
minor's custody, the second petitioner, Abdul
Azeem is admittedly the minor's father and the
natural guardian. He is entitled to meet his
daughter and interact with her as she grows up.
He would, therefore, be entitled to visitation
rights. Welfare of the minor that is of
paramount consideration is best secured in the
hands of her mother, Smt. Umme Alisha.(para19,20)

Habeas corpus petition dismissed.(E-7)

List of Cases Cited:-

## Text

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316 INDIAN LAW REPORTS ALLAHABAD SERIES
the area on which the court exercises such
jurisdiction.
There
are
significant
differences between the enquiry under the
Guardians and Wards Act and the exercise
of powers by a writ court which is
summary in nature. What is important is
the welfare of the child. In the writ court,
rights are determined only on the basis of
affidavits. Where the court is of the view
that a detailed enquiry is required, the court
may decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the civil court. It is only in
exceptional cases, the rights of the parties
to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas corpus.

7. It is thus evident that the present
proceedings would be open to the parties if
the minor were in the custody of an utter
stranger or a kindred who had no right
whatsoever under the law, or the custody held
by a person with no right, or is otherwise
illegal. In the present case, this Court finds
that the mother is a dentist and a well
educated woman. She is capable of earning
her livelihood, even if for the present, she
does not have a job in her home town of
Agra. There is no justification for this Court,
therefore, to issue a writ of habeas corpus
ordering the custody of the minor to be
hands-changed from the mother to the father.
This does not mean that the father is
remediless. If the father thinks that he has a
better right to the minor's custody, it is open
to him to bring a duly constituted application
under Section 25 of the Guardians and Wards
Act, or some other provision of the said
statute, as may be advised.

8. So far as the present writ petition is
concerned, this habeas corpus petition fails
and is dismissed subject to liberty given to
the father as indicated above.

9. The minor who has been brought by
the police, is left free to go with his mother.
The Sub Inspector who has brought the minor
here is discharged of his assignment.

10. The amount deposited with the
Registrar General of this Court shall be
remitted by the Registrar General forthwith in
the account of Dr. Smt. Akanksha Vashishth,
through a bank instrument payable at Agra.
----------
(2020)10ILR A316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 484 of 2020

Aisha (Minor) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Alok Kumar Srivastava

Counsel for the Respondents:
G.A., Sri Adil Jamal

(A) Criminal Law - Mulla's Mahomedan
Law - Section 352 - Right of mother to
custody of infant children, Section 353 -
Right to female relations in default of
mother, Section 354 - Females when
disqualified for custody,Section 355 -
Right of male paternal relations in default
of female relations , Section 359 - Legal
guardians of property - mother by the
personal law of parties is not the natural
guardian of the minor - Rather, it is the
father who is the natural guardian - under
the personal law of parties who are
Muslims - there is a distinction made
between the natural guardianship that is
with the father and the right to custody of
the minor that vests in the mother, until
the age of puberty in case of a minor girl -
In the case of a minor boy that right to
10 All. Aisha (Minor) & Anr. Vs. State of U.P. & Ors.
317
custody for a mother extends until the boy
turns seven years.(Para-13)

Petition filed for the issue of a writ of habeas
corpus - ordering respondent nos. 2,3 and 4 to
produce the detenue-petitioner no. 1, before the
Court - to set her at liberty by giving her into
the custody of the second petitioner, her father
and natural guardian - child is a two year old
girl - mother and the daughter as they appeared
before the Court seem to be inseparable - The
mother stays with her family comprising her
mother and brothers. (Para-1,18)

HELD:- Notwithstanding the fact that the
mother has been found better entitled to the
minor's custody, the second petitioner, Abdul
Azeem is admittedly the minor's father and the
natural guardian. He is entitled to meet his
daughter and interact with her as she grows up.
He would, therefore, be entitled to visitation
rights. Welfare of the minor that is of
paramount consideration is best secured in the
hands of her mother, Smt. Umme Alisha.(para19,20)

Habeas corpus petition dismissed.(E-7)

List of Cases Cited:-

1. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42

2. Sahil (Minor) & anr. Vs St. of U.P. and 3 ors.,
in Habeas Corpus Writ Petition No. 387 of 2020

3. Yashita Sahu Vs St. of Raj. & ors., (2020) 3
SCC 67

4. Imambandi & ors. Vs Sheikh Haji Mutsaddi &
ors., (1918-19) 23 CWN 50

5. Rafiq Vs Smt. Bashiran & anr., AIR 1963 Raj
239

6. Mt. Siddq-un-Nissa Bibi Vs Nizam-Uddin
Khan(1) Sulaiman, AIR 1932 All 215

7. Mohammad Shafi Vs Shamin Banoo, AIR
1979 Bom 156

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition asks for the issue of a
writ of habeas corpus ordering respondent
nos. 2,3 and 4 to produce the detenuepetitioner no. 1, Aisha before the Court and
to set her at liberty by giving her into the
custody of the second petitioner, Abdul
Azeem @ Mohd. Azeem, her father and
natural guardian.

2. It must be remarked here that
respondent nos. 2 and 3 are police officers
who are not claimed to be holding the
minor in their custody. The relief is,
therefore,
substantially
sought
against
respondent no. 4, Smt. Umme Alisha d/o
Abid Hussain, who is Abdul Azeem's
estranged wife and the minor's mother. The
5th respondent, Abid Hussain is Smt.
Umme Alisha's father, Abdul Azeem's
father-in-law and the minor's grandfather
(maternal). In substance, thus, a writ is
prayed to be issued against the minor's
mother at the instance of her father who
claims the mother's custody to be unlawful.

3. Heard Sri Alok Kumar Srivastava,
learned counsel for the petitioner, Sri Adil
Jamal who appears for respondent nos. 4
and 5 and Sri Gyan Prakash, learned State
Law Officer appearing on behalf of the
State-respondents.

4. The facts in the backdrop of which
this petition has arisen are these: Abdul
Azeem, the second petitioner and Smt.
Umme Alisha, the 4th respondent were
married according to Muslim rites on
28.10.2016. The couple were blessed with a
child, a baby girl on 04.09.2018. She has
been introduced hereinbefore as Aisha. It is
said that Smt. Umme Alisha and her
husband Abdul Azeem could not get along
together. They parted ways with Smt.
Umme
Alisha
moving
out
of
her
matrimonial home. She went back to her
318 INDIAN LAW REPORTS ALLAHABAD SERIES
parents and is staying with them. The
parties have turned an estranged couple. An
FIR also appears to have been lodged by
Smt. Umme Alisha on 08.02.2019 against
her husband, Mohd. Azeem, her father-inlaw, Mohd. Saleem, Mohd. Shanoo and
Mohd. Naseem, both brothers-in-law (jeth)
and Neha @ Baliga, sister-in-law (nanad)
complaining commission of offences by
them punishable under Sections 498-A,
323, 506, 306, 511, 467, 468, 471 I.P.C.
and Section 3/4 D.P. Act. It was registered
as Case Crime No. 21 of 2019 at P.S.
Colonel Ganj, Kanpur Nagar. There is
another FIR lodged by Smt. Umme Alisha
against Mohd. Azeem, her husband, her
father-in-law, Saleem and one unknown
offender reporting offences punishable
under Section 323, 354B, 452, 504, 506
I.P.C. and Section 4 of the Muslim Women
(Protection of Rights on Marriage) Act,
2019, P.S. Colonel Ganj, District Kanpur
Nagar. This FIR was lodged on 27.09.2019.
Mohd. Azeem has filed a suit for restitution
of conjugal rights against Smt. Umme
Alisha that has been numbered as Case No.
1287 of 2019 on the file of the learned
Principal Judge, Family Court, Kanpur
Nagar. It also appears that the location of
Smt. Umme Alisha's maternal home and
her parents place is a walking distance. The
parties are enmeshed in a quagmire of legal
proceedings. They have turned utterly
warry of each other. The mother holds the
parties' child in her custody and the father
has no access to the child. It is in the back
drop of these facts that the father has
moved this Court for a writ of habeas
corpus, seeking his minor daughter's
custody.

5. It is Mr. Alok Kumar Srivastava's
submission that according to the personal
law of parties that would govern the right
to guardianship and custody, the father is
the natural guardian. Both parties are
Muslims and by their personal law natural
guardianship of a minor is with the father.
Learned counsel submits that in the father's
presence and the parties being estranged,
the mother is obliged to handover the minor
child into her father's custody.

6. Mr. Adil Jamal on the other hand
says that the father may be the natural
guardian under the personal law applicable
to the parties but under that law, a mother,
notwithstanding the right of the father, is
entitled to a minor girl's custody till she
attains the age of puberty. Mr. Adil Jamal
says that the right to hold custody under the
personal law of parties is subject to the
overriding provisions of the Guardians and
Wards Act, 1890. He further submits that
the provisions of the last mentioned Act
and the law that has developed on the
subject mandates that welfare of the minor
is of paramount consideration. If, therefore,
the welfare of the minor requires a course
of action to be taken that is not in
accordance with the personal law of parties,
it is the welfare of the minor that has to be
given precedence. It is his submission that
the minor here is a young girl of two years,
who needs the mother and her care the
most. Her welfare can alone be secured in
the hands of the mother and not the father,
who is far less suited to look after the
young minor's interest.

7. It is further argued by the learned
counsel for the 4th respondent that the
mother and the father are both natural
guardians. None of them can, therefore, be
said to hold custody of the minor
unlawfully. As such, a writ of habeas
corpus would not be available to the second
petitioner claiming custody from the 4th
respondent who is the minor's mother and a
natural guardian, like the second petitioner.
10 All. Aisha (Minor) & Anr. Vs. State of U.P. & Ors.
319
He submits that in a case where the parents
are pitted against each other and seek to
establish a better right to custody, the
appropriate remedy is to move the Court
under Section 25 of the Guardians and
Wards Act, 1870. A writ of habeas corpus
would be available where the minor is in
the custody of an utter stranger or a kindred
who is not entitled to it.

8. This Court has thoughtfully
considered the rival submissions advanced
by parties. It would be apposite to deal with
the objections about maintainability of this
petition for a writ of habeas corpus in a
custody dispute between the mother and the
father.
This
question
arose
for
consideration before the Supreme Court in
Tejaswini Gaud and others vs. Shekhar
Jagdish Prasad Tewari and others,
(2019) 7 SCC 42. It was held in Tejaswini
Gaud (supra) thus:

"19. Habeas corpus proceedings
is not to justify or examine the legality of
the custody. Habeas corpus proceedings
is a medium through which the custody of
the child is addressed to the discretion of
the Court. Habeas corpus is a prerogative
writ which is an extraordinary remedy
and the writ is issued where in the
circumstances of the particular case,
ordinary remedy provided by the law is
either not available or is ineffective;
otherwise a writ will not be issued. In
child custody matters, the power of the
High Court in granting the writ is
qualified
only
in
cases
where
the
detention of a minor by a person who is
not entitled to his legal custody. In view
of the pronouncement on the issue in
question by the Supreme Court and the
High Courts, in our view, in child
custody matters, the writ of habeas
corpus is maintainable where it is proved
that the detention of a minor child by a
parent or others was illegal and without
any authority of law.

20. In child custody matters, the
ordinary remedy lies only under the
Hindu Minority and Guardianship Act or
the Guardians and Wards Act as the case
may be. In cases arising out of the
proceedings under the Guardians and
Wards Act, the jurisdiction of the court is
determined
by
whether
the
minor
ordinarily resides within the area on
which
the
court
exercises
such
jurisdiction.
There
are
significant
differences between the enquiry under the
Guardians and Wards Act and the
exercise of powers by a writ court which
is summary in nature. What is important
is the welfare of the child. In the writ
court, rights are determined only on the
basis of affidavits. Where the court is of
the view that a detailed enquiry is
required, the court may decline to
exercise the extraordinary jurisdiction
and direct the parties to approach the civil
court. It is only in exceptional cases, the
rights of the parties to the custody of the
minor will be determined in exercise of
extraordinary jurisdiction on a petition
for habeas corpus."

9. I had occasioned to consider this
issue in Sahil (Minor) & Another vs.
State of U.P. and 3 others, in Habeas
Corpus Writ Petition No. 387 of 2020,
decided on 03.09.2020, where it was held:

20. It would be noticed from a
perusal of the decisions of the Supreme
Court in Nithya Anand Raghavan (supra)
and Syed Saleemuddin (supra) referred to
by the Division Bench of this Court in
Manuj Sharma that the remedy of a habeas
corpus to an estranged parent has not been
held unavailable, even against the other
320 INDIAN LAW REPORTS ALLAHABAD SERIES
parent. All that appears to be the
requirement is to show that the child with
the other parent or with some other member
of the family is in detention and that
detention is unlawful. It is but logical that
in a case where one has to judge the
legality of the minor's detention by the
other parent or some other relative, the
nature of the applying parent's right, vis-avis the detaining parent or relative's is
decisive. The decision of their Lordships of
the Supreme Court in Tejaswini Gaud also
says that the jurisdiction of the High Court
in granting a habeas corpus is limited by
the fact whether the detention of the minor
is by a person who is not entitled to his
legal custody. It is true that the Supreme
Court has held in Tejaswini Gaud that
habeas corpus can be issued in exceptional
cases. It is not that the writ is completely
unavailable in matters where a parent
claims custody, to which he/ she is lawfully
entitled.

21. In this Court's opinion, where
there is not much of a debatable right
available to the other parent or some other
relative, who is detaining the child contrary
to the wish of the applying parent, the writ
ought to issue. However, if the parent or
the other relative detaining the minor has a
reasonable right that he/ she can show on
affidavits, the parties ought to be left to
pursue their remedy under the Guardians
and Wards Act. As such, what this Court
has concluded hereinabove that this petition
is
maintainable,
proceeds
on
valid
principles.

10. The maintainability of a petition
for a writ of habeas corpus in custody
disputes between parents recently engaged
the attention of the Supreme Court in
Yashita Sahu Vs. State of Rajasthan and
others, (2020) 3 SCC 67, where it has been
held:

10. It is too late in the day to urge
that a writ of habeas corpus is not
maintainable if the child is in the custody
of another parent. The law in this regard
has developed a lot over a period of time
but now it is a settled position that the court
can
invoke
its
extraordinary
writ
jurisdiction for the best interest of the child.
This has been done in Elizabeth Dinshaw
v.Arvand M. Dinshaw [Elizabeth Dinshaw
v. Arvand M. Dinshaw, (1987) 1 SCC 42 :
1987 SCC (Cri) 13] , Nithya Anand
Raghavan v. State (NCT of Delhi) [Nithya
Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454 : (2017) 4 SCC (Civ)
104] and Lahari Sakhamuri v. Sobhan
Kodali [Lahari Sakhamuri v. Sobhan
Kodali, (2019) 7 SCC 311 : (2019) 3 SCC
(Civ) 590] among others. In all these cases,
the
writ
petitions
were
entertained.
Therefore, we reject the contention of the
appellant wife that the writ petition before
the High Court of Rajasthan was not
maintainable.

11. The objection raised by the
learned counsel for the respondent that this
petition is not maintainable as it relates to a
custody dispute between two parents,
where custody of either cannot be said to
be unlawful, in the sense that it is
understood in the jurisdiction for a writ of
habeas corpus, cannot be accepted. The
validity of a minor's custody with a parent
can be examined in a petition for a writ of
habeas corpus with reference to the law
governing the right to that custody. The
question of welfare of minor too, can be
examined within the scope of these
proceedings. The only limitation appears to
be that the inquiry should not involve fine
and intricate details, the assessment of
which may require such a detailed inquiry
which is not traditionally associated with
the exercise of the Court's writ jurisdiction.
10 All. Aisha (Minor) & Anr. Vs. State of U.P. & Ors.
321
Where a very detailed inquiry is required to
be made, the parties ought to be left free in
the first instance to go to the Civil Court.

12. Now, in the facts of the present
case it has to be seen whether the custody
of the mother is apparently unlawful, so as
to entitle the father to ask for a writ of
habeas corpus.

13. It is true that the mother by the
personal law of parties is not the natural
guardian of the minor. Rather, it is the
father who is the natural guardian. But
under the personal law of parties who are
Muslims, there is a distinction made
between the natural guardianship that is
with the father and the right to custody of
the minor that vests in the mother, until the
age of puberty in case of a minor girl. In
the case of a minor boy that right to
custody for a mother extends until the boy
turns seven years.

14. It must be noted that under the
personal law of parties, there is a
distinction about the law relating to
guardianship of the minor's person and that
of his/her property. A reference in this
connection may be made to Mulla's
Principles
of
Mahomedan
Law
(Nineteenth Edition) by M. Hidayatullah
and Arshad Hidayatullah. Section 352 of
Mulla's Mahomedan Law, which falls
under Part B of Chapter XVIII dealing with
''Guardians of the Person of a Minor',
provides:

"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."

15. Again, sections 353, 354 and 355
that have material bearing on the issue are
extracted below:

"353. Right to 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.

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 (ss. 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
322 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) if she neglects to take proper
care of the child.

355. Right of male paternal
relations in default of female relations.-
In default of the mother and the female
relations mentioned in sec. 353, the custody
belongs to the following persons in the
order given below:-

(1) the father;

(2) nearest paternal grandfather;

(3) full brother;

(4) consanguine brother;

(5) full brother's son;

(6) consanguine brother's son;

(7) full brother of the father;

(8) consanguine brother of the
father;

(9) son of father's full brother;

(10) son of father's consanguine
brother;

Provided that no male is entitled
to the custody of an unmarried girl, unless
he stands within the prohibited degrees of
relationship to her (ss. 260-261).

If there be none of these, it is for
the Court to appoint a guardian of the
person of a minor."

16. The vivid difference about the
law governing guardianship of the person
of a minor and that relating to his/her
property can be clearly noticed from how
it is set out in Part C of Chapter XVII
of Mulla's Mahomedan Law. Section
359
of
Mulla's
Mahomedan
Law
provides:

"359.
Legal
guardians
of
property.- The following persons are
entitled in the order mentioned below to
be guardians of the property of a minor:-

(1) the father;

(2) the executor appointed by
the father's will;

(3) the father's father;

(4) the executor appointed by
the will of the father's father."

17. It would be seen that so far as
the right to custody of a minor girl under
the personal law of parties is concerned,
it is provided that it ought to remain with
the mother till she attains the age of
puberty. Thereafter, in India the Law that
has emerged is that custody must be
ordered not just by the letter of the
personal law but by judging where the
welfare of the minor best lies. I had
occasion to consider this question in
Sahil (Minor) (supra) where after doing
a survey of authority on the point, it was
held:

13. This entitlement of the
mother to the custody of a minor male
child (as well as female, which is not
relevant here) fell for consideration of the
Privy Council in Imambandi and ors.
vs. Sheikh Haji Mutsaddi and ors.,
(1918-19) 23 CWN 50, where it has been
held by their Lordships:

"It is perfectly clear that under
the Mahomedan law the mother is entitled
only to the custody of the person of her
minor child up to a certain age according to
the sex of the child. But she is not the
natural guardian; the father alone, or, if he
be dead, his executor (under the Sunni law)
is the legal guardian. The mother has no
larger powers to deal with her minor child's
property than any outsider or non-relative
who happens to have charge for the time
being of the infant....."

"As already observed, in the
absence of the father, under the Sunni law
the guardianship vests in his executor. It
the father dies without appointing an
execute or (wasi) and his father is alive, the
guardians hip of his minor children
devolves on their grandfather. Should he
10 All. Aisha (Minor) & Anr. Vs. State of U.P. & Ors.
323
also he dead, and have left an executor, it
vests in him. In default of these de jure
guardians, the duty of appointing a
guardian for the protection and preservation
of the infants' property devolves on the
Judge
as
the
representative
of
the
Sovereign (Baillie's "Digest," ed. 1875, p.
689; Hamilton's Heddya, Vol. IV, p. 555).
......"

14. This then is the position
about the entitlement to the custody of a
minor male child under the Muslim Law.
But, it must be remembered that the
personal law of parties is not the final
word about entitlement to custody or
guardianship in India. The right is
regulated by statute. The statute is the
Guardians and Wards Act, 1890. The
principle that the provisions of the
Guardians and Wards Act would prevail
over the personal law of parties in the
matter of appointment or declaration of a
guardian of the person or the property of
a minor, is a principle that has been
accepted without cavil by consistent
authority. The point was considered and
the law expounded in Rafiq vs. Smt.
Bashiran and another, AIR 1963 Raj
239. In Rafiq (supra), Jagat Narayan J.
after doing a survey of the provisions of
Sections 17 and 19 of the Guardians and
Wards Act and relying on a decision of
this Court in Mt. Siddq-un-Nissa Bibi v.
Nizam-Uddin Khan(1) Sulaiman, AIR
1932 All 215, held:

"The learned Senior Civil Judge
ignored the provisions of Sec. 19 of the
Guardians and Wards Act, which runs as
follows:--

"Nothing in this Chapter shall
authorise the Court to appoint or declare a
guardian of the property of a minor whose
property is under the superintendence of a
Court of Wards, or to appoint or declare a
guardian of the person--

(a) of a minor who is a married
female and whose husband is not, in the
opinion of the Court, unfit to be guardian of
her person, or

(b) of a minor whose father is
living and is not, in the opinion of the
Court, unfit to be guardian of the person of
the minor, or

(c) of a minor whose property is
under the superintendence of a Court of
Wards competent to appoint a guardian of
the person of the minor."

He did not come to a finding that
the father is unfit to be the guardian of the
person of the minor.

It may be mentioned here that
where the provisions of the personal law
are in conflict with the provisions of the
Guardians and Wards Act the latter prevail
over the former. It is only where the
provisions of the personal law are not in
conflict
with
the
provisions
of
the
Guardians and Wards Act that the court can
take into consideration the personal law
applicable to the minor in the appointment
of a guardian. The provisions of Sec. 19 of
the Guardians and Wards Act prevail over
the provisions of Sec. 17 which runs as
follows:--

(1) In appointing or declaring the
guardian of a minor, the Court shall,
subject to the provisions of this section, be
guided by what, consistently with the law
to which the minor is subject, appears in
the circumstances to be for the welfare of
the minor.

(2) In considering what will be
for the welfare of the minor, the Court shall
have regard to the age, sex and religion of
the minor, the character and capacity of the
proposed guardian and his nearness of kin
to the minor, the wishes, if any, of a
deceased parent, and any existing or
previous relations of the proposed guardian
with the minor or his property.
324 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) If the minor is old enough to
form an intelligent preference, the Court
may consider that preference.

(4) The Court shall not appoint or
declare any person to be a guardian against
his will."

(3) In Mt. Siddq-un-Nissa Bibi v.
Nizam-Uddin Khan, ILR 54 All 128 : (AIR
1932 All 215), Sulaiman, Acting C.J.
observed at page 134 (of ILR All) : (at p.
217 of AIR): -

"The personal law has been
abrogated to the extent laid down in the
Act. Where, however, the personal law is
not in conflict with any provision of the
Act, I would not be prepared to hold that it
has necessarily been superseded."

and at page 131 (of ILR All) : (at
p. 216 of AIR)--

"There can be no doubt that so far
as the power to appoint and declare the
guardian of a minor under Sec. 17 of the
Act is concerned, the personal law of the
minor concerned is to be taken into
consideration,
but
that
law
is
not
necessarily binding upon the court, which
must look to the welfare of the minor
consistently with that law. This is so in
cases where Sec. 17 applies. In such cases
the personal law has to this extent been
superseded that it is not absolutely binding
on the court and can be ignored if the
welfare of the minor requires that some one
else, even inconsistently with that law, is
the more proper person to be appointed
guardian of the minor. Sec. 19 then
provides that "Nothing in chapter shall
authorise the Court ...... to appoint or
declare a guardian of the person (a) of a
minor who is a married female and whose
bus-band is not, in the opinion of the court,
unfit to be guardian of her, person, or
(b)...... of a minor whose father is living
and is not, in the opinion of the court, unfit
to be guardian of the person of the minor,
or (c) of a minor whose property is under
the superintendence of a Court of Wards
competent to appoint a guardian of the
person of the minor." The language of the
section, as it stands, obviously implies that
when any of the three contingencies
mentioned in the sub-clauses exists there is
no authority in the court to appoint or
declare a guardian of the person of the
minor at all; that is to say, the jurisdiction
of the court conferred upon it by Sec. 17 to
appoint or declare a guardian is ousted
where the case is covered by Sec. 19."

(4) There is nothing on record to
show that the father of the minor is unfit to
be the guardian of her person. As was
observed in B.N. Ganguly v. G.H. Sarkar,
AIR 1961 Madh-Pra 173 there is a
presumption that the parents will be able to
exercise good care in the welfare of their
children."

15. The entire law about the right
of the mother to the custody of her minor
children, a son and a daughter, where the
parties were an estranged Muslim couple,
was considered by the Bombay High Court
in Mohammad Shafi vs. Shamin Banoo,
AIR 1979 Bom 156. It must be remarked
that the facts of the case in Mohammad
Shafi show that it was truly a custody
dispute between the estranged parents of
the two minors, where the application by
the mother for custody appears to be one
made under Section 25 of the Guardians
and Wards Act. She had asked for the
custody of her minor son, aged four years
and a minor daughter, aged two and a half
years, at the time of commencement of
action. The facts of the case founded on
pleadings of parties can best be understood
by a reference to their statement in
paragraph nos.2 and 3 of the report, that
read:

"2.
An
application
for
appointment of herself as guardian and for
10 All. Aisha (Minor) & Anr. Vs. State of U.P. & Ors.
325
the custody or returning the minors to her
custody was filed by Shamim Banu against
her husband Mohomed Shafi under sections
7 and 25 of the Guardian and Wards Act.
She alleged therein that she was married to
Mohomed Shafi and bore three children
from respondent Mohomed Shafi, namely
Mohomed Raees whose age was given as 4
years, Waheeda Begum, whose age was
given as 21⁄2 years and Farooque who was
aged 11⁄2 years at the time when this
application was presented. She then stated
that she was given very cruel treatment by
the respondent who wanted to marry
another woman and drove her out and at
that time snatched Mohomed Raees and
Waheeda Begum from her. Farooque was
then only a month old and was allowed to
be retained with her. She, therefore, filed
this application for custody or return of the
custody of the minors to herself, namely,
Mohomed Raees and Waheeda Begum and
for appointment of herself as the guardian
under section 7. She also stated in the
application that the respondent has married
Sajjidabegum after the petitioner was
driven away and that the respondent and his
newly married wife are living together
along with the minors who were, according
to her, treated cruelly by the wife, stepmother and the respondent.

3. The respondent filed his
written statement to this application and
denied that the petitioner was driven away
and was treated cruelly. He claimed that he
was the natural father of the minor children
whose ages were not disputed and was,
therefore, entitled to their custody. He
contended that the petitioner was divorced
by him on 7th November, 1975 and that she
was a woman of suspicious character and
had connections with others and used to
leave the house of the respondent at night
in the company of somebody secretly. That
she has left him with a view to carry on her
affair with her boy friend. In these
circumstances and also under the personal
law to which the parties belong, namely,
Mahomedan Law, he claimed that he was
entitled to the custody of the children and
was the proper and legal guardian of the
minors. It is his claim that the application is
motivated by the proceedings which she
has commenced under section 125 of the
Code of Criminal Procedure against him.
He did not deny that he has married a third
time, but denied that either the minors were
given cruel treatment by him or his new
wife. Lastly, he contended that the minors
are being properly looked after and that the
petitioner who is staying with her father has
no means of income as also her parents
which could be sufficient to bring up these
minor children. That they would be
practically starving whereas the respondent
has sufficient earnings of his own. That
there are other members in his family who
come to him and look after his children by
the petitioner."

16. After a searching analysis of
the provisions of the Guardians and Wards
Act and review of well-known authority on
the
point,
R.D.
Tulpule,
J.
held,
summarizing the principle:

"33. In my opinion, as pointed
out, the provisions of the personal law
applicable to the parties stand superseded
to the extent to which a provision is made
and which is inconsistent or contrary to that
personal law in the Guardians and Wards
Act. If the definition in section 4(2) is
capable of including the person who is not
a natural or legal guardian at the moment,
but has the care of the minor, then it seems
to me that he can maintain an application
under section 25 of the Act. If such an
application can be maintained and if the
minor was in the custody of such person, as
in the present case, a legal guardian cannot
say if it is in the interest of the minor and
326 INDIAN LAW REPORTS ALLAHABAD SERIES
for the welfare of the minor that the
custody should be handed over to such
guardian as contemplated under section 4
of the Guardians and Wards Act, that such
custody should not be granted. It seems to
me, therefore, that if it was in the interest of
the minor and for its welfare to award the
custody to such guardian as defined under
section 4(2) to him, its custody should be
given. It seems to me that even the personal
law applicable to the parties in this case
recognises the right to the custody of the
mother in spite of the father being a legal
and natural guardian during certain period.
As I pointed out that could not be upon any
other consideration except that the mother
is the best person suited to take care of the
minor. If that is so, I am inclined to think
that she comes within the definition of
''guardian' as contemplated under section 4.
In that view I do not think particularly in
the
present
circumstances
any
other
conclusion can be reached as regards what
is in the interest and welfare of the minors."

17. It is clear from the position of
law as it stands that so far as the custody of
a minor child is concerned, the mother is
entitled to it until the child is of tender age,
unless there be a clear disentitlement
inferable. This right of the mother to the
child's custody is not based on the personal
law of parties alone, but on a well
acknowledged
principle
arising
from
human nature - and if this Court may dare
say from the animal nature of man - that the
mother is best oriented to look after the
welfare of her infant or young child. The
mother has always been regarded to be best
equipped to take care of the needs of a
young child, and secure his/ her welfare
compared to a father. This right of the
mothers
is
subject
only
to
known
exceptions, like her marriage to a stranger
or the mother living a demonstrably
immoral life. The mother's right is so well
established, that in case of a minor of
tender years, any other relative holding the
child in his/ her custody while the mother is
around, would be unlawful custody. Of
course, the principle would not apply if the
mother is disentitled under some reputed
exception.

18. In the present case, this Court
finds that the child is a two year old girl.
The mother and the daughter as they
appeared before the Court seem to be
inseparable at this stage. The mother, Smt.
Umme Alisha stays with her family
comprising her mother and brothers. It is
urged in the petition that Smt. Umme
Alisha's brothers are drunkards but there is
no tangible evidence about the fact, brought
to the Court's notice. Nothing has been
brought to the Court's notice that would
disentitle the mother of the availability of
that strong presumption that she is best
suited to look after the welfare of a young
child of two years, particularly a girl.

19. Notwithstanding the fact that the
mother has been found better entitled to the
minor's custody, the second petitioner,
Abdul Azeem is admittedly the minor's
father and the natural guardian. He is
entitled to meet his daughter and interact
with her as she grows up. He would,
therefore, be entitled to visitation rights.

20. This Court, therefore, finds that
welfare of the minor that is of paramount
consideration is best secured in the hands
of her mother, Smt. Umme Alisha. It is far
better secured in her hands than the father,
who has asked for the minor's custody
through a writ of this Court.

21. It is, however, made clear that
whatever
has
been
said
in
these
proceedings is tentative. If the father feels
10 All. Bishantak & Ors. Vs. State of U.P. & Ors.
327
for the present or at a later stage that he has
a better right to the minor's custody, it
would always be open to him to institute
appropriate proceedings before a Court of
competent jurisdiction under the Guardians
and Wards Act, 1890 as may be advised. In
case, he seeks custody of the minor by
moving
the
Court
of
competent
jurisdiction, nothing said here would affect
the rights of either party to establish their
case on merits. The Court concerned shall
be free to decide the issue of custody of the
minor on the basis of evidence led and in
accordance with law.

22. In the result, the rule nisi issued
cannot be made absolute. It is discharged.
The petition stands dismissed.

23. The second petitioner, Abdul
Azeem @ Mohd. Azeem, the minor's father
shall have visitation rights in terms that
Smt. Umme Alisha d/o Abid Hussain and
the minor's grandfather, Abid Hussain shall
permit the father, Abdul Azeem to meet the
minor Aisha once a month on the second
Tuesday between 10:00 a.m. to 01:00 p.m.
During these visits, the 4th and the 5th
respondent shall extend due courtesy to the
father, Abdul Azeem and shall facilitate the
meeting.

24. Let this order be communicated to
the learned District Judge, Kanpur Nagar
and the S.S.P., Kanpur Nagar by the Joint
Registrar (compliance).
----------

(2020)10ILR A327
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 487 of 2020

Bishantak & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ranjeet Kumar Mishra, Sri Rajesh
Kumar Singh

Counsel for the Respondents:
A.G.A., Sri Devesh Mishra