# Master Mahib Sajjad Masood & Anr v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-29
- **Case number:** Habeas Corpus Writ Petition No. 880 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-mahib-sajjad-masood-anr-v-state-of-u-p-ors-51301
- **Pages:** 5

## Headnote

Civil Law -Guardians and Wards Act, 1890
- Section 17 - Principles of Mahomedan
Law - Sections 352 & 353 - Constitution of
India,1950- Article 226 - Petitioners (father and
7-year-old son) sought habeas corpus for son's
custody
from
mother,
alleging
unlawful
detention post-separation. Court held: (1)
Habeas corpus maintainable only for unlawful
custody; child's welfare paramount, not parental
rights (Syed Saleemuddin Vs Rukhsana, (2001)
5 SCC 247). (2) Under Section 352 of Principles
of Mahomedan Law, mother entitled to custody
(hizanat) of male child until age 7; father's
unwillingness to reunite and mother's capability
favored current custody (Dhanwanti Joshi Vs
Madhav Unde, (1998) 1 SCC 112). (3) No
illegality in mother's custody; child stable in
school and health; detailed inquiry needed for
change (Tejaswini Gaud Vs Shekhar Jagdish
Prasad Tewari, (2019) 7 SCC 42). (4) Father's
talaq claim and prior separation do not override
mother's rights; liberty to seek formal custody
under GWA (Nithya Anand Raghavan Vs St.
(NCT of Delhi), (2017) 8 SCC 454). (5) Corpus
114 INDIAN LAW REPORTS ALLAHABAD SERIES
to return with mother; observations prima facie,
without prejudice to future claims. Petition
dismissed. (Paras 1-32)

Writ Petition Dismissed.

Case Law Cited:

## Text

2 All. Master Mahib Sajjad Masood & Anr. Vs. State of U.P. & Ors.
113
demonstrate
the
huge
and
serious
differences and conflicts the couple have
between them. All said and done the facts
remains that the petitioner has not been
able to show that how it is necessary to
transfer custody of the corpus from mother
to the father at this juncture and how the
welfare of the child would be better served
with his father or how mother is not
entitled or how it is not good to leave the
corpus with his mother.

18. The parties were interviewed and
interacted with, by me in the privacy of my
chamber. I tried to fathom the factors
involved in the matter for the purpose of
exploring
the
chances
of
amicable
settlement as well as for the purpose of
deciding custody of the child. After long
interaction with the two, I came to the
conclusion
that
there
are
issues,
controversies and certain happenings which
cannot be solved by ordinary counselling.
The parties need to go through long and
sustained counselling and that in the
circumstances I find it much better not to
disturb the custody of the corpus at this
juncture and more so to keep him away
from complexities of the relationship
between his parents. This probability
cannot be ruled out that with change of
hands - he might be exposed to certain
other realities of strained relations between
his parents, of which he might be oblivious
of so far. A tender and impressionable mind
is not prepared for a jolt now and in case he
is dislodged from his current environment,
in which he may be comfortable by now,
such a course of action may bring new
revelations which ultimately may not be
conducive for his health.

19. Taking into consideration all the
facts and circumstances, I do not find any
good reason for transferring the custody of
the child to the petitioner. Therefore this
habeas corpus writ petition is dismissed.
----------
(2024) 2 ILRA 113
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2024

BEFORE

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

Habeas Corpus Writ Petition No. 880 of 2023

Master Mahib Sajjad Masood & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Om Prakash Mishra, Sri R.P.S. Chauhan,
Sri Abhishek

Counsel for the Respondents:
G.A., Sri R.P. Ranjan

Civil Law -Guardians and Wards Act, 1890
- Section 17 - Principles of Mahomedan
Law - Sections 352 & 353 - Constitution of
India,1950- Article 226 - Petitioners (father and
7-year-old son) sought habeas corpus for son's
custody
from
mother,
alleging
unlawful
detention post-separation. Court held: (1)
Habeas corpus maintainable only for unlawful
custody; child's welfare paramount, not parental
rights (Syed Saleemuddin Vs Rukhsana, (2001)
5 SCC 247). (2) Under Section 352 of Principles
of Mahomedan Law, mother entitled to custody
(hizanat) of male child until age 7; father's
unwillingness to reunite and mother's capability
favored current custody (Dhanwanti Joshi Vs
Madhav Unde, (1998) 1 SCC 112). (3) No
illegality in mother's custody; child stable in
school and health; detailed inquiry needed for
change (Tejaswini Gaud Vs Shekhar Jagdish
Prasad Tewari, (2019) 7 SCC 42). (4) Father's
talaq claim and prior separation do not override
mother's rights; liberty to seek formal custody
under GWA (Nithya Anand Raghavan Vs St.
(NCT of Delhi), (2017) 8 SCC 454). (5) Corpus
114 INDIAN LAW REPORTS ALLAHABAD SERIES
to return with mother; observations prima facie,
without prejudice to future claims. Petition
dismissed. (Paras 1-32)

Writ Petition Dismissed.

Case Law Cited:

1. Syed Saleemuddin Vs Rukhsana, (2001) 5
SCC 247 (Para 23)

2. Dhanwanti Joshi Vs Madhav Unde, (1998) 1
SCC 112 (Para 20)

3. Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42 (Para 24)

4. Nithya Anand Raghavan Vs St. (NCT of
Delhi), (2017) 8 SCC 454 (Para 24)

5.
Kanu
Sanyal
Vs
District
Magistrate,
Darjeeling, (1973) 2 SCC 674 (Para 24)

6. Elizabeth Dinshaw Vs Arvand M. Dinshaw,
(1987) 1 SCC 42 (Para 24)

(Delivered by 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
2 All. Master Mahib Sajjad Masood & Anr. Vs. State of U.P. & Ors.
115
sent to her maternal home by her husband,
on 03.06.2023, 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, 18901, 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. 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 Law2 and PartA 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.
116 INDIAN LAW REPORTS ALLAHABAD SERIES

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. 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. 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
2 All. Abbas Ansari Vs. Adhikshak Janpad Karagar, Kasganj & Ors.
117
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 others3.

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.
----------
(2024) 2 ILRA 117
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2024

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 1002 of 2023

Abbas Ansari ...Petitioner
Versus
Adhikshak Janpad Karagar, Kasganj & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Abhishek
Kumar Mishra, Sri Dayashankar Mishra (Sr.
Advocate)

Counsel for the Respondents:
G.A.,
A.S.G.I.,
Ms.
Annapurna
Singh
Chandel

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 10, 11, 12(1) &
13 - Petitioner challenged detention order dated
18.09.2023 under Section 3(2), confirmed on
02.11.2023 for three months, and extended on
11.12.2023 for six months. Court held: (1)
Confirmatory order under Section 12(1) is final;
St. Government lacks authority to review or
extend it (Pesala Nookaraju Vs Govt. of Andhra
Pradesh, 2023 SCC OnLine SC 1003; Ameena
Begum Vs St. of Telangana, (2023) 9 SCC 587).
(2) If a specific period is prescribed in the
confirmatory order, detention is valid only for
that period; if no period is specified, detention
may extend up to 12 months per Section 13. (3)
Confirmatory order of 02.11.2023 specified
three months; extension order of 11.12.2023
was illegal. (4) Detention beyond three months
from 18.09.2023 was unlawful. Extension order
set aside; petitioner to be released forthwith
unless required in another case. (Paras 7-9)

Writ Petition Allowed.

Case Law Cited:

1. Pesala Nookaraju Vs Govt. of Andhra
Pradesh, 2023 SCC OnLine SC 1003 (Paras 4, 7,
8)

2. Ameena Begum Vs St. of Telangana, (2023) 9
SCC 587 (Paras 4, 8)