# Mohd. Irfan v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-11
- **Case number:** Special Appeal No. 1015 of 2014
- **Bench:** Rakesh Tiwari, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-irfan-v-state-of-u-p-ors-43078
- **Pages:** 6

## Headnote

High Court Rules-Chapter VIII-Rule-5Special Appeal-against the order passed
in
Habeas
Corpus
petition-whether
maintainable?-held-'yes'-if
related
to
determination of civil rights.
Held: Para-10
Hence, in view of the legal position
discussed above, the special appeal
against an order passed on the writ
petition of habeas corpus, if related to
the determination of civil rights, is
maintainable.
(B)
Constitution
of
India,
Art.-226Habeas Corpus-custody of minor child
about 2 1⁄2 years-under Mohammedan
Law-father entitled to received custodybut
welfare
of
minor
child-being
paramount consideration-where father
married second time-while respondent
being natural mother-not interested into
any
marriage-Learned
Single
Judge
rightly directed appellant to handover
the custody of minor child in favor of
respondent-require no interference.
Held: Para-20
Thus, the paramount consideration before
this Court is the welfare of the child and
keeping in view the welfare of the infant
and the fact that admittedly her father has
remarried whereas her natural mother has
not
performed
re-marriage,
the
real
mother Shaista Anjum appears to be best
person for having the custody and care of
the infant girl Amal Irfa. The learned writ
court
has
rightly
ordered
the
father/appellant to hand over the minor
child Amal Irfa and we find no good
ground to interfere in the said order.
Case Law discussed:
1980 (Supp.) Supreme Court Cases 696; 2011
(89) ALR 779; Mohammedan Law Volume 11
pages 304; (2001) 5 Supreme Court Cases

## Text

1 All]. Mohd. Irfan Vs. State of U.P. & Ors.
17
the aforesaid issue in the light of the
observations made herein above namely :
1. "Whether the definition of the
word "victim" as used in Section 2 (wa)
would mean any person other than a
"guardian" or "legal heir" also for the
purpose of maintaining an appeal under
Section 372 Cr. P.C."
2. Whether the ratio of the decision of
the Division Bench of this Court in the case
of Edal Singh Vs. State (Supra) states the
law
correctly
keeping
in
view
the
conflicting ratios of the Full Bench decision
of the Punjab & Haryana High Court in the
case of M/s. Tata Steel Ltd. (Supra) and that
of the Patna High Court in the case of
Parmeshwar Mandal (Supra).
26. Let the papers be placed before
Hon'ble the Chief Justice for referring the
aforesaid questions to be answered
accordingly.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Special Appeal No. 1015 of 2014
Mohd. Irfan
...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri Suresh Chandra Dwivedi
Counsel for the Respondents:
C.S.C., Sri Pankaj Srivastava
High Court Rules-Chapter VIII-Rule-5Special Appeal-against the order passed
in
Habeas
Corpus
petition-whether
maintainable?-held-'yes'-if
related
to
determination of civil rights.
Held: Para-10
Hence, in view of the legal position
discussed above, the special appeal
against an order passed on the writ
petition of habeas corpus, if related to
the determination of civil rights, is
maintainable.
(B)
Constitution
of
India,
Art.-226Habeas Corpus-custody of minor child
about 2 1⁄2 years-under Mohammedan
Law-father entitled to received custodybut
welfare
of
minor
child-being
paramount consideration-where father
married second time-while respondent
being natural mother-not interested into
any
marriage-Learned
Single
Judge
rightly directed appellant to handover
the custody of minor child in favor of
respondent-require no interference.
Held: Para-20
Thus, the paramount consideration before
this Court is the welfare of the child and
keeping in view the welfare of the infant
and the fact that admittedly her father has
remarried whereas her natural mother has
not
performed
re-marriage,
the
real
mother Shaista Anjum appears to be best
person for having the custody and care of
the infant girl Amal Irfa. The learned writ
court
has
rightly
ordered
the
father/appellant to hand over the minor
child Amal Irfa and we find no good
ground to interfere in the said order.
Case Law discussed:
1980 (Supp.) Supreme Court Cases 696; 2011
(89) ALR 779; Mohammedan Law Volume 11
pages 304; (2001) 5 Supreme Court Cases
247.
(Delivered by Hon'ble Vijay Lakshmi, J.)
1. This intra-court appeal arises out
of
the
judgment
and
order
dated
8.10.2014 passed by learned Single Judge
in Habeas Corpus Writ Petition No.
18
 INDIAN LAW REPORTS ALLAHABAD SERIES
12616 of 2014 ( Amal Irfa Vs. State of
U.P. and 2 others) whereby the learned
Single Judge while allowing the writ
petition has directed the appellant, who is
the father of corpus -little girl Amal Irfa
to hand over her custody to her mother
Mrs. Shaista Anjum at the earliest and not
later than 15th October, 2014.
2. At the very outset, learned counsel
for the respondent Mrs. Shaista Anjum has
raised a preliminary objection regarding the
maintainability of this special appeal on the
ground that the proceedings in writ of
habeas corpus are criminal in nature, so
special appeal against it is not maintainable
in view of provision of Chapter VIII Rule 5
of Allahabad High Court Rules which
specifically bars special appeal against an
order of single judge passed in exercise of
criminal jurisdiction.
3. On the other hand, learned
counsel for the appellant has submitted
that the special appeal is maintainable
against such order and that is why the
Stamp Reporter has not reported anything
against its maintainability.
4. We have heard learned counsel
from both the sides on the point of
maintainability of this special appeal.
5. The writ jurisdiction is an extra
ordinary
jurisdiction
providing
a
constitutional remedy for enforcement of
not only fundamental rights but also for
enforcement of any legal right whether
civil, criminal, administrative or relating
to personal laws. Right to appeal is a
statutory right and a person can invoke
such right if it is so provided by Statute.
6. Chapter VIII Rule 5 of Allahabad
High Court Rules, 1952 which is
reproduced below, provides for special
appeal :
"5. Special appeal - An appeal shall
lie to the Court from a judgment {not
being a judgment passed in the exercise of
Appellate Jurisdiction in respect of a
decree or order made by a Court subject
to the Superintendence of the Court and
not being an order made in the exercise of
revisional jurisdiction or in the exercise of
its power of Superintendence or in the
exercise of criminal jurisdiction (or in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution in respect of any judgment,
order or award (a) of a tribunal, Court or
statutory arbitrator made or purported to
be made in the exercise or purported
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act,
with respect to any of the matters
enumerated in the State List or the
Concurrent List in the Seventh Schedule
to the Constitution or (b) of the
Government or any Officer or authority,
made or purported to be made in the
exercise
or
purported
exercise
of
Appellate or Revisional Jurisdiction under
any such Act} of one Judge."
7. A perusal of the aforesaid
provision shows that a special appeal will
not lie when :
1.the judgment passed by one Judge
in the exercise of appellate jurisdiction, in
respect of a decree or order made by a
Court subject to the superintendence of
the Court;
2.the order made by one Judge in the
exercise of revisional jurisdiction;
3.the order made by one Judge in the
exercise of the power of superintendence
of the High Court;
1 All]. Mohd. Irfan Vs. State of U.P. & Ors.
19
4.the order made by one Judge in the
exercise of criminal jurisdiction;
5.the order made by one Judge in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution of India in respect of any
judgment, order or award by the tribunal,
Court or statutory arbitrator made or
purported to be made in the exercise or
purported exercise of jurisdiction under
any Uttar Pradesh Act or under any
Central Act with respect to any of the
matters enumerated in the State List or the
Concurrent List in the Seventh Schedule
to the Constitution of India;
6. the order made by one Judge in the
exercise of jurisdiction conferred by Article
226 or 227 of the Constitution of India in
respect of any judgment, order or award by
the Government or any officer or authority
made or purported to be made in the
exercise or purported exercise of appellate
or revisional jurisdiction under any such
Act, i.e. under any Uttar Pradesh Act or
under any Central Act, with respect to any
of the matters enumerated in the State List
or the concurrent list in the Seventh
Schedule to the Constitution of India."
8. Hon'ble Supreme Court in the
case of Union of India and others Vs.
Inderjit Barua and others; 1980 (Supp)
Supreme Court Cases 696; has observed
that writ of habeas corpus cannot said to
be purely criminal in nature. Earlier under
Section 491 of old Code of Criminal
Procedure, 1898, power was conferred on
the High Court to issue writ of habeas
corpus. So writ of habeas corpus was
treated
as
a
criminal
proceeding.
However, Section 491 of old Cr.P.C. was
ultimately omitted by the new Cr.P.C. of
`1973 and there is no provision analogous
to it in the new Cr.P.C. After coming into
force of our constitution, the scope of writ
of habeas corpus become much larger and
wider as our Constitution does not make
any difference between civil and criminal
nature of the proceedings so far as the
writ jurisdiction is concerned. Moreover,
the present petition relates to the custody
of child which is a civil right. A
Coordinate Bench of this Court in the
case of Riya Singh Vs. State of U.P.;
2011 (89) ALR 779 has observed as under
:
"....certain
category
of
special
appeals have been excluded from the
purview of Chapter VIII, Rule 5 but there
is no exclusion with regard to judgment of
learned Single Judge deciding a writ
petition in the nature of Habeas Corpus.
Had the Legislature intended to exclude
the said appeal also, the same could have
been specifically provided."
9. Learned counsel for respondent
no. 3 could not show any provision under
which special appeal against an order
passed in the writ of habeas corpus is not
maintainable.
10. Hence, in view of the legal
position discussed above, the special
appeal against an order passed on the writ
petition of habeas corpus, if related to the
determination
of
civil
rights,
is
maintainable.
11. By means of this appeal, Sri
Suresh Chandra Dwivedi, learned counsel
for the appellant has assailed the validity
and correctness of the order passed by the
learned Single Judge on the following
grounds :-
1)the order impugned has been
passed in complete violation of principle
of natural justice.
20
 INDIAN LAW REPORTS ALLAHABAD SERIES
2)Learned Single Judge has not
decided the habeas corpus petition but he
has decided the guardianship application
which is without jurisdiction.
3)The case laws cited in the
impugned judgment are not applicable to
the present controversy.
4)According to the Muslim Law,
father is the natural guardian of a child.
After divorce between the parties, the
appellant was maintaining his daughter
Amal Irfa (corpus) with the help of his
family members. Hence the impugned
order is against the law of "Shariyat".
5)The impugned order has been passed
without affording any opportunity of hearing
to the appellant for rebuttal of the allegations
made in the habeas corpus petition.
6)The habeas corpus petition in this
case was not maintainable. The petitioner
had chosen a wrong forum and instead of
filing a case under Guardianship Act, she
had filed the habeas corpus petition.
7)The question relating to custody of
child could have only be decided under
Muslim Guardians Act because both the
parties are muslims. But the learned
single judge has passed the order without
jurisdiction.
8)Smt. Shaista Anjum, ex-wife of the
appellant, by means of agreement of
divorce dated 10.2.2014 had herself
abandoned her rights as she was not
interested in maintaining her daughter
Amal Irfa, Therefore, she had no right to
file habeas corpus petition. However, the
learned Single Judge without taking note
of the divorce agreement dated 10.2.2014
has passed the impugned order which is
liable to be set aside.
9)The habeas corpus petition has
been decided by the learned single judge
without calling for counter affidavit,
therefore, the impugned order is liable to
be set aside.
10)There is no such allegation in the
habeas corpus petition that Amal Irfa has
been illegally detained by the appellant and
in absence of illegal detention, the said
habeas corpus petition is not maintainable.
12. We have heard Sri Suresh
Chandra Dwivedi, learned counsel for the
appellant, Sri Pankaj Srivastava, learned
counsel appearing for respondent no. 3
and learned A.G.A. appearing on behalf
of respondent nos. 1 and 2 and perused
the records.
13. Briefly stated, the facts giving
rise to the controversy involved in this
writ petition, are that Shaista Anjum, (the
mother) through whom the habeas corpus
writ petition was moved, was married to
Mohd. Irfan on 2.12.2010. Out of their
wedlock Amal Irfa (corpus) was born
(who is aged about two and half years at
present). Unfortunately, the marriage
wrecked on the bedrock of strained
relations. The appellant by proclamation
thrice as 'Talak', 'Talak, 'Talak' divorced
his wife. It has been further alleged in the
writ
petition
that
the
appellant
(respondent No. 3 in the writ petition)
with his aides came at the house of the
parents of Shaista Anjum, where she was
staying.
He
forcibly
obtained
her
signatures on a fabricated 'Talaknama' and
snatched the girl child Amal Irfa from her
mother, who made vain attempt to lodge
FIR and being unsuccessful moved an
application under Section 156 (3) Cr.P.C.
before the Magistrate concerned. In the
writ petition, it was prayed that the
petitioner being an infant in need of care
and protection of her mother and the
mother being the best qualified to cherish
a child during infancy, the respondent no.
3 be directed to deliver the custody of
corpus Amal Irfa to her mother.
1 All]. Mohd. Irfan Vs. State of U.P. & Ors.
21
14. A perusal of the impugned order
shows that the writ court vide order dated
27.2.2014 issued notice upon respondent
no. 3 ( here appellant) directing him to
file his counter affidavit and also to
produce in court his minor daughter Amal
Irfa on the next date of listing. The
appellant appeared before the writ court
through
his
learned
advocate
and
produced his minor daughter. Sri Irshad
Ahmad and Sri Sheikh Moazzam Inam,
Advocates filed their power for the
Respondent No. 3 on 22.4.2014, but
despite the fact that two learned advocates
were
there
to
represent
the
appellant/respondent no. 3 and despite
having considerable time and opportunity
since 22.4.2014 till 8.10.2014 i.e. about 6
months, he did not file any counter
affidavit. Under these circumstances,
learned writ court heard both the parties
and passed the impugned judgment.
15. In view of the aforesaid facts
and circumstances, we find no force in the
argument advanced by learned counsel for
the appellant that he was denied of natural
justice and no opportunity of hearing or
filing counter affidavit was given to him.
16. The age of the infant girl was
only 2 years 3 months at the time of
judgment by the writ court. At present too
she does not look more than 21⁄2 or 3 years
of age. There is no doubt that under
Mohammadan Law, the father is the
natural guardian but the mother is entitled
to the custody (Hizanat) of her child until
she
attains
puberty.
This
position
continues even through the mother is
divorced except in cases where she remarrys.
17. Amir Alli in Mohammedan Law
Volume 11 at page 304 has observed:
"The mother can on no account give
up her right of 'Hizanat' for even if she
were to obtain a Khula in lieu of
abandonment of her right to her child
custody Khula will be valid and she will
retain a right of Hizanat"
18. In the case of Syed Saleemuddin
Vs. Dr. Rukhsana and others; (2001)5
Supreme Court Cases 247 the Hon'ble
Apex Court has held that :
"In an application seeking a writ of
habeas corpus for custody of minor
children, the principal consideration for
the court is to ascertain whether the
custody of the children requires that the
present custody should be changed and
the children should be left in the care and
custody of somebody else. The principle
is well settled that in a matter of custody
of a child the welfare of the child is of
paramount consideration for the court."
19. The father (appellant) was
summoned by us alongwith minor Amal
Irfa in court on 26.11.2014 and he had
admitted the fact that after divorce with
Shaista Anjum, he had re-married. Thus,
on one side there is step mother to look
after the child and on the other side the
child has the benefit of love, care and
affection of her real mother. In a
proceeding concerning the custody of a
minor, the Courts must have supreme
regard to the welfare of the minor as first
and paramount consideration and must
treat any rights, priorities or preferences
of the parents or of either of them or of
any other person as subordinate thereto.
20.

Thus,
the
paramount
consideration before this Court is the
welfare of the child and keeping in view
the welfare of the infant and the fact that
22
 INDIAN LAW REPORTS ALLAHABAD SERIES
admittedly her father has remarried
whereas her natural mother has not
performed re-marriage, the real mother
Shaista Anjum appears to be best person
for having the custody and care of the
infant girl Amal Irfa. The learned writ
court
has
rightly
ordered
the
father/appellant to hand over the minor
child Amal Irfa and we find no good
ground to interfere in the said order.
21. The special appeal is liable to be
dismissed and is hereby dismissed. In
compliance of the order dated 8.10.2014
passed by the writ court whereby the writ
court had fixed the specific date for
delivery of child, the interim custody of
child Amal Irfa has already been given to
her real mother Mrs. Shaista Anjum in the
court. The minor Amal Irfa shall remain
in custody of her mother till she attains
the age of puberty. The appellant Mohd.
Irfan shall bear all the expenses necessary
for her proper maintenance till she attains
the age of puberty. The father shall have
the right to visit and see his daughter
Amal Irfa once in a month at the house of
some common relative which the party
may decide with the help of their learned
counsel.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2014
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal No. 1088 of 2014
State Bank of India, Corporate Center,
Mumbai & Ors.
 ...Appellants
Versus
Rajesh Kumar & Anr.
...Respondents
Counsel for the Appellants:
Sri S.K. Kakkar
Counsel for the Respondents:
A.S.G.I., Sri Siddharth Khare
Constitution of India, Art.-226-Termination
of Assistant clerk-during probation periodon ground during written examination
petitioner
allowed
another
person
by
personification-hence appointment being
void ab inito-on basis of hand writing
expert signature on admit card found
different than admitted signature-Single
Judge quashed termination being punitive
in nature-can not be passed without full
fledge enquiry-confirmed-so far 50% back
wages concern shall be subject to outcome
of disciplinary proceeding if Bank decide to
initiate disciplinary proceeding as per
direction of Single Judge-order modifiedappeal disposed of.
Held: Para-8 & 9
8.
In this view of the matter, the order of
the learned Single Judge insofar as it directs
reinstatement of the respondent and holds
that the termination should have been
preceded by a full fledged disciplinary
enquiry, cannot be faulted. As the record
before the Court would indicate, the
termination of service was preceded by a
report of a forensic expert. The forensic
expert opined that the material produced
before
him
establishes
an
act
of
impersonation. In a disciplinary enquiry, if
this allegation is to be proved, the
employee, who was a probationer, would
have an opportunity of stating his defence
and rebutting the case of the Bank. But
more importantly, once it is evident from
the
order
of
termination
that
the
cancellation of appointment was on account
of a misconduct allegedly committed by the
respondent, a disciplinary enquiry ought to
have been held.
9. However, on the issue of back wages
and other consequential benefits, we are
of the view that the learned Single
Judge,
while
exercising
jurisdiction
under Article 226 of the Constitution,