# Rinku Rukshar v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** Habeas Corpus Writ Petition No. 495 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rinku-rukshar-v-state-of-u-p-ors-45382
- **Pages:** 13

## Headnote

Constitution of India - Article 226-Writ of
habeas corpus- Guardianship and Wards
Act, 1890 - Maintainability- The question
of the custody being lawful or unlawful
has to be seen in some measure with the
origin of the complaint or the transaction
through which the custody has been taken
away by one parent or the other, when
they have separated- This principle about
the
welfare
of
the
child
being
of
paramount consideration, working to the
exclusion of all entitlement under the
personal laws, is well recognized. Once
the Court finds that the custody with one
parent subserves the welfare of the minor
best, the custody with the other becomes
unlawful enough to be corrected by way of
a habeas corpus. If it can be determined
on obvious facts, not much in dispute, the
writ must issue or be refused on merits
according to the conclusion reached.

A writ of habeas corpus would be maintainable
upon the consideration of the transaction
resulting in the custody being taken away by
186 INDIAN LAW REPORTS ALLAHABAD SERIES
one parent after separation, welfare of the child
and admitted facts between the parties.

Muslim Personal Law ( Shariat) Application
Act, 1937- Guardianship and Wards Act,
1890- Conflict between- 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.

It is settled law that where the provisions of
Muslim Personal law are in conflict with those of
the Guardians and Wards Act, the provisions of
the Act shall prevail over the Personal law.

Constitution of India- Article 226-Writ of
habeas corpus - It is certainly more
important to a minor's welfare that he
receives the mother's love and guidance,
as also her close supervision, that may
groom him into a young adult and a good
citizen. Away from the mother, in the
father's
company,
the
likelihood
of
delinquency is higher as the father is away
to earn his livelihood. So far as the
financial
needs
of
the
minor
are
concerned, it is the father's responsibility
to provide for him and the law would take
care that the father discharges that
responsibility towards the minor, though
the minor stays with the mother.

The paramount consideration before the Court ,
while granting custody of the child , would be
the welfare of the child which can only be best
subserved if the mother is granted the custody
of the child.

Habeas Corpus petition allowed. ( Para 15,
16, 17, 21, 22, 23) (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,815 of 44,272. This is a partial read: ask again with offset=39815 for what follows._

11 All. Rinku Rukshar Vs. State of U.P. & Ors.
185
the child as he is employed as an Assistant
Teacher and has to stay away from home
almost all day. As already remarked, a
child who is two years old, inevitably needs
his mother more than he does his father. It
is well known that financial capacity is not
the sole index by which the suitability of a
guardian for the minor's custody is to be
judged. It is to be judged on far more
sensitive parameters. For once, if it be
found that the father is financially better of,
that is not a factor that would work against
the mother. This is so because the father
still would have the responsibility to
provide for the minor. If he fails to do so,
the law would take care of it. The father's
financial strength is available to the minor
whether he stays with the father or the
father and the mother living together or the
mother, where the two live apart and
estranged. In the considered opinion of this
Court, therefore, the welfare of the minor
would be best secured in the hands of his
mother, the second petitioner, Smt. Shalini
Singh.

13. In the result, the rule nisi is made
absolute. The minor, Atharva is ordered to be
handed over to the mother, Smt. Shalini Singh
forthwith in Court. The writ petition is allowed.

14. It is further ordered that the father,
respondent no. 6, Mukesh shall have visitation
rights whereunder he shall be entitled to visit his
minor son Master Atharva at Smt. Shalini
Singh's abode twice a week on the Tuesdays
and Saturdays, between 5:00 p.m. to 7:00 p.m.
In case of any obstruction with his visitation
rights, the S.H.O. P.S. Lalpur Pandepur,
Varanasi shall lend necessary assistance to
Mukesh Kumar Singh.

15. Let this order be communicated to
the
S.H.O.,
P.S.,
Lalpur,
Pandeypur
through the S.S.P., Varanasi by the Joint
Registrar (compliance).
----------
(2020)11ILR A185
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

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

Habeas Corpus Writ Petition No. 495 of 2020

Rinku Rukshar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
G.K.
Srivastava,
Sri
Dilip
Kumar
Srivastava

Counsel for the Respondents:
A.G.A., Sri Radhey Shyam

Constitution of India - Article 226-Writ of
habeas corpus- Guardianship and Wards
Act, 1890 - Maintainability- The question
of the custody being lawful or unlawful
has to be seen in some measure with the
origin of the complaint or the transaction
through which the custody has been taken
away by one parent or the other, when
they have separated- This principle about
the
welfare
of
the
child
being
of
paramount consideration, working to the
exclusion of all entitlement under the
personal laws, is well recognized. Once
the Court finds that the custody with one
parent subserves the welfare of the minor
best, the custody with the other becomes
unlawful enough to be corrected by way of
a habeas corpus. If it can be determined
on obvious facts, not much in dispute, the
writ must issue or be refused on merits
according to the conclusion reached.

A writ of habeas corpus would be maintainable
upon the consideration of the transaction
resulting in the custody being taken away by
186 INDIAN LAW REPORTS ALLAHABAD SERIES
one parent after separation, welfare of the child
and admitted facts between the parties.

Muslim Personal Law ( Shariat) Application
Act, 1937- Guardianship and Wards Act,
1890- Conflict between- 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.

It is settled law that where the provisions of
Muslim Personal law are in conflict with those of
the Guardians and Wards Act, the provisions of
the Act shall prevail over the Personal law.

Constitution of India- Article 226-Writ of
habeas corpus - It is certainly more
important to a minor's welfare that he
receives the mother's love and guidance,
as also her close supervision, that may
groom him into a young adult and a good
citizen. Away from the mother, in the
father's
company,
the
likelihood
of
delinquency is higher as the father is away
to earn his livelihood. So far as the
financial
needs
of
the
minor
are
concerned, it is the father's responsibility
to provide for him and the law would take
care that the father discharges that
responsibility towards the minor, though
the minor stays with the mother.

The paramount consideration before the Court ,
while granting custody of the child , would be
the welfare of the child which can only be best
subserved if the mother is granted the custody
of the child.

Habeas Corpus petition allowed. ( Para 15,
16, 17, 21, 22, 23) (E-3)

Judgements/ Case law relied upon:-

1. Syed Saleemuddin Vs Dr. Rukhsana & ors.,
(2001) 5 SCC 247

2. Nithya Anand Raghavan Vs State (NCT of
Delhi) & anr., (2017) 8 SCC 454
3. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42

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

5.
Mulla's Principles of Mahomedan Law
(Nineteenth Edition) by M. Hidayatullah &
Arshad Hidayatullah

6. Sahil (Minor) & anr. Vs St. of U.P., Habeas
Corpus Writ Petition No. 387 of 2020, decided
on 03.09.2020

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

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

1. This petition for a writ of habeas
corpus has been filed by Rinku Rukshar,
asking that the detenue, Asif, her minor
son, be ordered to be produced before this
Court from the unlawful custody of Arshad,
the minor's father, and, set at liberty by
being given into her custody. The relief
though worded differently in substance
seeks what the Court has delineated above.

2. The facts here go to show that
Rinku Rukshar, the sole petitioner and the
respondent no. 4, Arshad were married
according
to
the
Muslim
rites
on
14.12.2014. A child Asif, the minor, now
aged a little less than six years was born of
the wedlock of parties. The petitioner
claims to have been driven away from her
matrimonial home about five years ago,
and since then, she is staying with her
maternal
aunt.
It
appears
that
on
13.05.2020, the husband Arshad came over
to the petitioner's maternal aunt's place and
said that she may come over and stay with
him along with her children.

3. The petitioner appears to have
stayed with the husband for a few days
11 All. Rinku Rukshar Vs. State of U.P. & Ors.
187
before bickerings, again marred the parties'
matrimonial peace. She was once again
thrown out of the matrimonial home, with
the husband telling her that he could not
take care of the petitioner and her children.
It
is
the
petitioner's
case
that
on
04.08.2020, her husband assaulted her with
an intention to kill. The petitioner called
rescue at the Police facility number 112.
Before the police
could arrive, the
petitioner's husband Arshad and Arshad's
sister Reshma, who is the 5th respondent
here escaped from the village, taking along
with them the detenue, the petitioner's
minor son, Asif.

4. The petitioner lodged a first
information report against Arshad and his
sister Reshma on 08.08.2020. This report
was lodged on some portal relating to Jan
Sunwai, where it has a reference number. It
does not appear to have been registered as a
crime. The petitioner's grievance is that no
action has been taken by the Police to
recover her son, the minor. It is the
petitioner's case, therefore, that the minor's
custody with the father, who has virtually
snatched him away from her lap, along
with his sister Reshma, is unlawful. The
minor should be liberated from his father's
custody unlawfully taken and held, and
restored to the mother, the petitioner.

5.

Heard
Sri
Dilip
Kumar
Srivastava,
learned
counsel
for
the
petitioner, Sri Radhey Shyam, learned
counsel
appearing
on
behalf
of
respondent no. 4 and Sri Indrajeet Singh,
learned AGA appearing on behalf of the
State.

6. In compliance with the rule nisi
issued by this Court on 05.10.2020, the
minor-detenue Asif has been produced in
Court. The mother, Rinku Rukshar and
her husband, the minor's father Arshad
have also appeared.

7. I have spoken to the minor, who
is less than six years old. He is an
intelligent child but of tender years.
Though, he has expressed his wish to stay
with his father but going by his age and
maturity of the mental faculty, the choice
is far from an intelligent one. The choice
has been expressed that way out of
emotions because he is staying with the
father. This aspect of the matter shall be
considered a little later in the judgement.

8. Learned counsel appearing for
respondent no.4, Sri Radhey Shyam has
raised a preliminary objection that a
petition for a writ of habeas corpus cannot
be maintained against the father, who is the
minor's natural guardian. A writ of habeas
corpus is available, according to Mr.
Radhey Shyam, against an utter stranger or
a distance kindred, who holds the minor in
custody without any semblance of a right.
Learned counsel for respondent no.4
emphasizes that the father is the minor's
natural guardian under the personal law of
parties. In case, the petitioner wishes to
show that she has a better right to the
minor's custody on the principle about the
minor's welfare being paramount that ought
to prevail over what the personal law of
parties says, the remedy of the petitioner is
to move the Court under the Guardianship
and
Wards
Act,
1890
through
an
appropriately framed application under
Section 25 of that Act, or as may be
advised. Learned counsel for the petitioner
Sri Dilip Kumar Srivastava rebutting the
aforesaid contention submits that a writ of
habeas corpus can issue against one parent,
at the instance of the other, provided the
parent who holds the custody does so
unlawfully. He submits that by now, it is
188 INDIAN LAW REPORTS ALLAHABAD SERIES
well settled that a writ of habeas corpus can
issue in a custody dispute relating to
children between the parents, both of whom
are natural guardians, or generally under
the law have a right to custody, provided
the custody can be shown to be unlawful.

9. This Court has keenly considered
the issue about the maintainability of this
petition, where both parties are parents of
the
minor.
This
question
fell
for
consideration of the Supreme Court in
Syed Saleemuddin v. Dr. Rukhsana and
Ors., (2001) 5 SCC 247. It was held in
Syed Saleemuddin thus:

"11. From the principles laid
down in the aforementioned cases it is clear
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 can be said to be unlawful or
illegal and whether the welfare of the
children requires that present custody
should be changed and the children should
be left in 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 of
the Court. Unfortunately, the Judgment of
the High Court does not show that the
Court has paid any attention to these
important and relevant questions. The High
Court has not considered whether the
custody of the children with their father
can, in the facts and circumstances, be said
to be unlawful. The Court has also not
adverted to the question whether for the
welfare of the children they should be taken
out of the custody of their father and left in
the care of their mother. However, it is not
necessary for us to consider this question
further in view of the fair concession made
by Shri M.N. Rao that the appellant has no
objection if the children remain in the
custody of the mother with the right of the
father to visit them as noted in the
judgment of the High Court, till the Family
Court disposes of the petition filed by the
appellant for custody of his children."

10. Again, the question arose before
the Supreme Court in Nithya Anand
Raghavan vs. State (NCT of Delhi) and
another, (2017) 8 SCC 454. In Nithya
Anand Raghavan, it was held:

"44. The present appeal emanates
from a petition seeking a writ of habeas
corpus for the production and custody of a
minor child. This Court in Kanu Sanyal v.
District
Magistrate,
Darjeeling
[Kanu
Sanyal v. District Magistrate, Darjeeling,
(1973) 2 SCC 674 : 1973 SCC (Cri) 980] ,
has held that habeas corpus was essentially
a procedural writ dealing with machinery
of justice. The object underlying the writ
was to secure the release of a person who is
illegally deprived of his liberty. The writ of
habeas corpus is a command addressed to
the person who is alleged to have another
in unlawful custody, requiring him to
produce the body of such person before the
court. On production of the person before
the court, the circumstances in which the
custody of the person concerned has been
detained can be inquired into by the court
and upon due inquiry into the alleged
unlawful
restraint
pass
appropriate
direction as may be deemed just and
proper. The High Court in such proceedings
conducts
an
inquiry
for
immediate
determination of the right of the person's
freedom and his release when the detention
is found to be unlawful.

45. In a petition for issuance of a
writ of habeas corpus in relation to the
custody of a minor child, this Court in
Sayed Saleemuddin v. Rukhsana [Sayed
11 All. Rinku Rukshar Vs. State of U.P. & Ors.
189
Saleemuddin v. Rukhsana, (2001) 5 SCC
247 : 2001 SCC (Cri) 841] , has held that
the principal duty of the court is to
ascertain whether the custody of child is
unlawful or 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.
While
doing
so,
the
paramount consideration must be about the
welfare of the child. In Elizabeth [Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1
SCC 42 : 1987 SCC (Cri) 13] , it is held
that in such cases the matter must be
decided not by reference to the legal rights
of the parties but on the sole and
predominant criterion of what would best
serve the interests and welfare of the minor.
The role of the High Court in examining
the cases of custody of a minor is on the
touchstone of principle of parens patriae
jurisdiction, as the minor is within the
jurisdiction
of
the
Court
[see
Paul
Mohinder Gahun v. State (NCT of Delhi)
[Paul Mohinder Gahun v. State (NCT of
Delhi), 2004 SCC OnLine Del 699 : (2004)
113 DLT 823] relied upon by the
appellant]. It is not necessary to multiply
the authorities on this proposition.

46. The High Court while dealing
with the petition for issuance of a writ of
habeas corpus concerning a minor child, in
a given case, may direct return of the child
or decline to change the custody of the
child keeping in mind all the attending facts
and circumstances including the settled
legal position referred to above. Once
again, we may hasten to add that the
decision of the court, in each case, must
depend on the totality of the facts and
circumstances of the case brought before it
whilst considering the welfare of the child
which is of paramount consideration. The
order of the foreign court must yield to the
welfare of the child. Further, the remedy of
writ of habeas corpus cannot be used for
mere enforcement of the directions given
by the foreign court against a person within
its jurisdiction and convert that jurisdiction
into that of an executing court. Indubitably,
the writ petitioner can take recourse to such
other remedy as may be permissible in law
for enforcement of the order passed by the
foreign court or to resort to any other
proceedings as may be permissible in law
before the Indian Court for the custody of
the child, if so advised.

47. In a habeas corpus petition as
aforesaid, the High Court must examine at
the threshold whether the minor is in lawful
or unlawful custody of another person
(private respondent named in the writ
petition). For considering that issue, in a
case such as the present one, it is enough to
note that the private respondent was none
other than the natural guardian of the minor
being her biological mother. Once that fact
is ascertained, it can be presumed that the
custody of the minor with his/her mother is
lawful.
In
such
a
case,
only
in
exceptionable situation, the custody of the
minor (girl child) may be ordered to be
taken away from her mother for being
given to any other person including the
husband (father of the child), in exercise of
writ jurisdiction. Instead, the other parent
can be asked to resort to a substantive
prescribed remedy for getting custody of
the child.

11. This question recently came up
before the Supreme Court in Tejaswini
Gaud and others vs. Shekhar Jagdish
Prasad Tewari and others, (2019) 7 SCC
42. In Tejaswini Gaud, their Lordships
examined the question elaborately and
held:

"19. Habeas corpus proceedings
is not to justify or examine the legality of
190 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

12. The maintainability of a habeas
corpus petition in child's custody disputes
figured as a prominent question very
recently in a decision of the Supreme Court
where a writ of habeas corpus was asked by
one parent against the other to secure the
custody of a child, who was claimed to be
in the unlawful detention of the other. This
question arose in Yashita Sahu vs. State of
Rajasthan and others, (2020) 3 SCC 67.
It was held in Yashita Sahu thus:

"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
wirt
jurisdiction for the best interest of the child.
This has been done in Elizabeth Dinshaw v.
Arvand
M.
Dinshaw,
Nithya
Anand
Raghavan v. State (NCT of Delhi) and
Lahari Sakhamuri v. Sobhan Kodali 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."

13. The issue about minor's welfare
here can be conveniently resolved without
a reference to facts that require a searching
probe.

14. It may be remarked that this kind
of an issue relating to the custody of a child
when raised between two parents, is always
tricky ground to tread on. This is so
because in case of parents, the right to hold
the child's custody under the law, rests with
both of them.
11 All. Rinku Rukshar Vs. State of U.P. & Ors.
191

15. The question of the custody,
therefore, being lawful or unlawful has to
be seen in some measure with the origin of
the complaint or the transaction through
which the custody has been taken away by
one parent or the other, when they have
separated. But, that test about the issue is
less substantial. The legality of the custody
held by one parent to the exclusion of the
other would depend upon the kind of right
that the parent who holds custody enjoys
under the personal law of parties, and more
than that, by the abiding principle that
welfare of the child is of paramount
consideration. This principle about the
welfare of the child being of paramount
consideration, working to the exclusion of
all entitlement under the personal laws, is
well recognized. The question of welfare of
the minor has to be determined on the basis
of various criteria about it, judicially
evolved over time, applied to the facts and
circumstances of each case. Once the Court
finds that the custody with one parent
subserves the welfare of the minor best, the
custody with the other becomes unlawful
enough to be corrected by way of a habeas
corpus.

16. Of course, inquiry in proceedings for
a writ of habeas corpus being summary, the
determination of the question if found to be
mired in too much complexity of facts and
evidence, the parties may be asked to seek
their remedies under the Guardianship and
Wards Act, 1890. If it can be determined on
obvious facts, not much in dispute, the writ
must issue or be refused on merits according
to the conclusion reached. Still again, the
nature of remedy being summary, the Court
may order custody in favour of one party or
the other, leaving the party not found entitled,
to establish his right before the competent
forum under the Guardianship and Wards Act.

17. It is, therefore, held that this petition
is indeed maintainable.

18. In the present case, what the Court
finds is that the parties are Muslims where the
personal law has some bearing on the
question of guardianship and the right to
custody of a minor. Under the personal law of
the parties, the father, no doubt is the natural
guardian of a minor but the right to custody
in case of a minor boy is with the mother, till
he attains the age of the seven years. It may
be noted that there are different principles
governing the guardianship of the person and
property of the minor. Reference may be
made with profit 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."

19. 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:-
192 INDIAN LAW REPORTS ALLAHABAD SERIES

(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

(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."

20. Part C of Chapter XVII of Mulla's
Mahomedan
Law,
makes
provision
regarding guardianship of the property of a
minor. Section 359 reads thus:

"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."

21. We had occasion to consider the
question about the entitlement to custody of
a minor child under the Muslim Law in
Sahil (Minor) and another vs. State of
U.P., Habeas Corpus Writ Petition No.
387 of 2020, decided on 03.09.2020,
where doing a review of relevant authority,
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
11 All. Rinku Rukshar Vs. State of U.P. & Ors.
193
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
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
194 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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."

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
11 All. Rinku Rukshar Vs. State of U.P. & Ors.
195
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 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, step-mother 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."

22. In the present case, the Court
finds that the child is still of tender years.
196 INDIAN LAW REPORTS ALLAHABAD SERIES
The child is aged about six years who
needs just not the financial means of his
father but also the loving care and guidance
of his mother. The father is, of course, there
but the mother is required to be around the
child, at close quarters. It is certainly more
important to a minor's welfare that he
receives the mother's love and guidance, as
also her close supervision, that may groom
him into a young adult and a good citizen.
Away from the mother, in the father's
company, the likelihood of delinquency is
higher as the father is away to earn his
livelihood.

23. So far as the financial needs of
the minor are concerned, it is the father's
responsibility to provide for him and the
law would take care that the father
discharges that responsibility towards the
minor, though the minor stays with the
mother. There is nothing pleaded or said
on behalf of the father to show that the
mother is disentitled to the minor's
custody on the basis of any principle
recognized by law. It has also not been
shown that the minor's welfare would be
better secured for some demonstrable
cause with the father, while the father
stays estranged with the mother.

24. In these circumstances, the
principles of law clearly work in a way
that the conclusion has to go in favour of
a better welfare for the minor in the
hands of his mother. This Court must
observe here that during the interaction
with the minor whatever words of choice
he expressed for the father were no more
than clinging emotions, because he is
staying with his father for some time
now. There is nothing expressed in the
minor's words that may persuade the
Court to decide against the mother, or in
the
father's
favour.
The
mother's
insistence to hold the custody of the
minor is more than a mere wish.

25.

In
the
entirety
of
the
circumstances of the present case, this
Court is satisfied that prima facie the
welfare of the minor would be better
secured in the mother's hands. This Court
makes it clear that the conclusions
recorded above are tentative in nature.