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

- **Citation:** (2020) 9 ILRA 30
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-03
- **Case number:** Habeas Corpus Writ Petition No. 387 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahil-minor-anr-v-state-of-u-p-ors-45939
- **Pages:** 12

## Headnote

A. Muslim Personal Law - Minor child -
Mother's Right of custody - Mother has an
unqualified right in preference to the
father till the child attains the age of
seven years - The right, however, is lost
once she remarries - 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 that the mother is best
oriented to look after the welfare of her
infant or young child - The mother has
9 All. Sahil (Minor) & Anr. Vs. State of U.P. & Ors.
31
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. (Para
12 and 17)

B. Law of Guardianship - Muslim Personal
Law - Guardianship and Ward Act, 1890 -
Application - Personal law of parties is not the
final word about entitlement to custody or
guardianship in India - The right is regulated
by the statute namely 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. (Para 14)

C. Constitution of India - Article 226 - Writ
of Habeas Corpus - Maintainability - Matter
relating to custody of minor - Mother asking for
her child's custody from a grandfather, who is
resisting the mother's right, certainly entitles the
mother to say that the grandfather's custody is
so unlawful that she is entitled to a writ of
habeas corpus - Mother need not be relegated
to her ordinary remedy of bringing and pursuing
an application, under Section 25 of the
Guardians and Wards Act - Held, writ of Habeas
Corpus is maintainable. (Para 18, 19 and 21)

D. Writ of Habeas Corpus - Welfare of
child - Factors to be kept in mind - Welfare of
the minor is certainly more secure in the
mother's hand - It is far more secure than in
the hands of an aging grandfather, who has
married a second time and introduced a step
grandmother for the minor in his family - It is
well acknowledged that the welfare of the minor
is not secured by money alone. It is the product
of multifaceted grooming that involves affection,
supervision, guidance, education, inculcation of
good human values and many other factors of
like genre, that go to achieve realization of the
human personality - Held, the minor's welfare is
far better secured with the mother than in the
hands of the grandfather, the rule nisi is made
absolute. (Para 24 and 26)
Writ Petition allowed (E-1)

Cases relied on :-

## Text

_Characters 0–39,998 of 41,505. This is a partial read: ask again with offset=39998 for what follows._

30 INDIAN LAW REPORTS ALLAHABAD SERIES
supply of the material necessary to submit a
representation in accordance with clause (5) of
Article 22 of the Constitution of India. Such
non-supply of material violates a precious
fundamental right of a detenue enshrined under
Article 22 of the Constitution. On this count
also the detention of Dr. Kafeel Khan deserves
to be set aside.

50. The detention of Dr. Kafeel Khan
has also been extended twice. It is stated by
learned Additional Advocate General that the
detenue even while in prison is in contact with
the students of Aligarh Muslim University and
is instigating to disturb public order of the city.
The facts stated is not acceptable being not
supported by any material. At the threshold, it
would be appropriate to state that the detenue
is in State custody where he can't have any
electronic device or other mechanical device to
have contact anyone. The other eventuality is
sending messages through the visitors, but no
record of that too is available.

51. One more important aspect of the
matter is that the orders of extension were
never served upon the detenue. The record
shown to us and the pleadings of the
petition also refer that only radiograms
relating
to
decision
of
the
State
Government for extension of the term of
detention were supplied to the detenue. The
radiograms mentions that the actual order
shall be sent through speed post but in fact
nothing except the radiograms were given
to the detenue. In light of the discussion
above, we are having no hesitation in
concluding that neither detention of Dr.
Kafeel Khan under National Security Act,
1980 nor extension of the detention are
sustainable in the eye of law.

52. As we have arrived at a
conclusion that the order of detention is
bad, we do not consider it necessary to deal
with the argument advanced by learned
counsel for the petitioner relating to delay
in submission of representation.

53. The writ petition for the reasons
given above is allowed. The order of
detention dated 13th February, 2020 passed
by
District
Magistrate,
Aligarh
and
confirmed by the State of Uttar Pradesh is
set aside. The extension of the period of
detention of detenue Dr. Kafeel Khan is
also declared illegal. A writ in the nature of
habeas corpus is hereby issued to release
Dr. Kafeel Khan, the detenue from State
custody forthwith.
----------
(2020)09ILR A30
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2020

BEFORE

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

Habeas Corpus Writ Petition No. 387 of 2020

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

Counsel for the Petitioners:
Sri Ashutosh Kumar Pandey

Counsel for the Respondent:
A.G.A.

A. Muslim Personal Law - Minor child -
Mother's Right of custody - Mother has an
unqualified right in preference to the
father till the child attains the age of
seven years - The right, however, is lost
once she remarries - 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 that the mother is best
oriented to look after the welfare of her
infant or young child - The mother has
9 All. Sahil (Minor) & Anr. Vs. State of U.P. & Ors.
31
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. (Para
12 and 17)

B. Law of Guardianship - Muslim Personal
Law - Guardianship and Ward Act, 1890 -
Application - Personal law of parties is not the
final word about entitlement to custody or
guardianship in India - The right is regulated
by the statute namely 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. (Para 14)

C. Constitution of India - Article 226 - Writ
of Habeas Corpus - Maintainability - Matter
relating to custody of minor - Mother asking for
her child's custody from a grandfather, who is
resisting the mother's right, certainly entitles the
mother to say that the grandfather's custody is
so unlawful that she is entitled to a writ of
habeas corpus - Mother need not be relegated
to her ordinary remedy of bringing and pursuing
an application, under Section 25 of the
Guardians and Wards Act - Held, writ of Habeas
Corpus is maintainable. (Para 18, 19 and 21)

D. Writ of Habeas Corpus - Welfare of
child - Factors to be kept in mind - Welfare of
the minor is certainly more secure in the
mother's hand - It is far more secure than in
the hands of an aging grandfather, who has
married a second time and introduced a step
grandmother for the minor in his family - It is
well acknowledged that the welfare of the minor
is not secured by money alone. It is the product
of multifaceted grooming that involves affection,
supervision, guidance, education, inculcation of
good human values and many other factors of
like genre, that go to achieve realization of the
human personality - Held, the minor's welfare is
far better secured with the mother than in the
hands of the grandfather, the rule nisi is made
absolute. (Para 24 and 26)
Writ Petition allowed (E-1)

Cases relied on :-
1. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors.; (2019) 7 SCC 42
2. Imambandi & ors. Vs Sheikh Haji Mutsaddi &
ors., (1918-19) 23 CWN 50
3. Rafiq Vs Smt. Bashiran & anr., AIR 1963 Raj
239
4. Mt. Siddq-un-Nissa Bibi Vs Nizam-Uddin
Khan(1) Sulaiman, AIR 1932 All 215
5. Mohammad Shafi Vs Shamin Banoo, AIR
1979 Bom 156
6. Habeas Corpus Writ Petition No. 82 of 2019;
Manuj Sharma Vs St. of U.P. & Others, decided
on 12 April, 2019
7. Nithya Anand Raghavan Vs St. of NCT of
Delhi & ors., (2017) 8 SCC 454
8. Syed Saleemuddin Vs Dr. Rukhsana & ors.,
(2001) 5 SCC 247
(Delivered by Hon'ble J.J. Munir, J.)

1. This Habeas Corpus Writ Petition
has been effectively filed by the second
petitioner, Rehana Bano, asking that the
first petitioner, Sahil, her minor son, aged a
little less than four years, be ordered to be
produced before the Court from the
unlawful custody of respondent no.4, Abdul
Sohrab,
the
minor's
grandfather
and
liberated from the said custody, ordering
him to be placed in his mother's custody.

2. Heard Sri Ashutosh Kumar Pandey,
learned Counsel for the petitioners and Sri
Indrajeet Singh, learned A.G.A. appearing
on behalf of the State.

3. Respondent no.4, Abdul Sohrab
appeared in person, but did not file a
counter affidavit. He produced the minor,
Sahil in compliance with the rule nisi
issued by this Court.
32 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The case of the second petitioners
is that she was married according to
Muslim rites on 15.05.2013 to the late
Amjad
Khan
son
of Sohrab
Khan,
respondent no.4. After solemnization of
marriage, she cohabited with her husband,
discharging her conjugal obligations. It is
asserted that on 28.10.2016, the minor
detenue, Sahil was born of the wedlock of
parties. The second petitioner's deceased
husband, Amjad Khan got the name of their
newly born son registered with the
competent Authority, under the Registration
of Births and Deaths Act, 1989 on
28.10.2016. The certificate of birth was
issued on 13.12.2016. That certificate is on
record as Annexure no.1 to this petition.

5. It is averred by the second petitioner
that by ill-fate, she lost her husband, Amjad
Khan on 08.02.2017. Once widowed, she faced
a barrage of physical and mental harassment,
besides torture at the hands of her in-laws,
including respondent no.4. It is averred in
paragraph no.6 that respondent no.4 would not
be content with ill-treating his daughter-in-law,
the second petitioner; he would beat up the first
petitioner, the second petitioner's minor son. It
is the second petitioner's case that on
05.09.2019 at about 7 O' clock in the morning,
she was thrown out from her matrimonial home
by the fourth respondent, acting in concert with
the other in-laws, who beat her up and relieved
her of her jewelry and other personal
belongings. To add to it, the fourth respondent
and other in-laws forcibly snatched away her
minor son, Sahil. It is averred that the minor is a
young child, less than three years and stands
deprived of the second petitioner's maternal
love, affection, company and security.

6. It is by now a well reputed and an
unexceptionable principle of law that in
child custody matters, welfare of the minor
is of paramount consideration. But, before
the
Court
could
look
into
those
considerations, Sri Indrajeet Singh, learned
A.G.A. has raised a preliminary objection
that a writ of habeas corpus cannot be
invoked
to
decide
virtually
custody
disputes about minors, between family
members. He submits that the fourth
respondent is the minor's grandfather,
whereas the second petitioner is his mother.
If the mother feels that she is entitled to the
minor's custody, she ought to go to the
Court of competent jurisdiction under the
Guardians and Wards Act, 1890. In fact,
according to the learned A.G.A., Section 25
of the Guardians and Wards Act is the ideal
remedy for a natural guardian to secure
custody of a minor from another natural
guardian, vis-a-vis whom the claiming
guardian may feel that he/ she has a better
right to the minor's custody. A writ of
habeas corpus, according to Sri Indrajeet
Singh, is not at all available to resolve
custody disputes regarding minors.

7. This question fell for consideration
of the Supreme Court in Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad
Tewari and others, (2019) 7 SCC 42.
After review of earlier authority of their
Lordships of the Supreme Court, it was
held:

"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
9 All. Sahil (Minor) & Anr. Vs. State of U.P. & Ors.
33
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."

8. It is true that the grandfather is not
an utter stranger and, in fact, under the
Personal Law of parties, who are Muslims,
the grandfather may be regarded as the
natural guardian in the absence of the
father, who dies without appointing a
testamentary guardian or an executor. But
under the personal law of parties also, there
is a distinction made between the natural
guardianship that belongs to the father and
the right to custody that vests in the mother
until the age of seven years, in case of a
minor boy. In case of a minor girl, that right
to custody for the mother extends until the
girl attains the age of puberty. In this
regard, it may be mentioned that under the
personal law of parties, there is a clear
distinction about the law relating to
guardianship of the person of a minor and
guardianship of his/ her property. 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."

9. 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;
34 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

10 It would be noticed that in sharp
contrast to the law governing guardianship
of the person of a minor, Part C of Chapter
XVII
of
Mulla's
Mahomedan
Law,
enunciates
the
law
quite
differently
regarding guardianship of the property of a
minor. Section 359 provides 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."

11. Here, a juxtaposition of Sections
352, 353 and 355 on one hand and Section
359 on the other brings out in sharp relief
the distinction between the right to custody
or guardianship of the person of a minor
and the right to guardianship of his/ her
property.

12. The principles of the personal law
governing parties show that so far as the
right to custody of a male child, who is a
minor is concerned, the mother has an
unqualified right in preference to the father
till the child attains the age of seven years.
The right, however, is lost once she
remarries. If she does marry, the right to
9 All. Sahil (Minor) & Anr. Vs. State of U.P. & Ors.
35
custody accrues to the father. A different
principle applies where the mother is not
there. In that case, it goes, according to a
graded entitlement of ten different female
relatives of the mother and the father in the
order indicated under Section 353 (supra).
Upon a failure of female relatives, it goes
to an ordered list of ten male relatives,
indicated under Section 355 (supra).

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
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
36 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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
9 All. Sahil (Minor) & Anr. Vs. State of U.P. & Ors.
37
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
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
38 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
9 All. Sahil (Minor) & Anr. Vs. State of U.P. & Ors.
39
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. Here, it is not the father who holds
the child in custody, claimed to be unlawful
by the second petitioner. It is the
grandfather of the minor. This Court is of
opinion that the mother asking for her
child's custody from a grandfather, who is
resisting the mother's right, certainly
entitles the mother to say that the
grandfather's custody is so unlawful that
she is entitled to a writ of habeas corpus.
She need not be relegated to her ordinary
remedy of bringing and pursuing an
application, under Section 25 of the
Guardians and Wards Act.

19. To the end of a reassurance of the
principle that a writ of habeas corpus in
matters relating to custody of minors may
be issued, reference may be made to a
recent decision of a Division Bench of this
Court in Manuj Sharma vs. State of Uttar
Pradesh & Others, Habeas Corpus Writ
Petition No.82 of 2019, decided on 12th
April, 2019. In Manuj Sharma (supra),
after a searching review of authority on the
point, whether a writ of habeas corpus can
lie to seek custody of a minor between an
estranged couple, particularly, the decisions
of the Supreme Court in Nithya Anand
Raghavan v. State of NCT of Delhi and
others, (2017) 8 SCC 454 and Syed
Saleemuddin v. Dr. Rukhsana and Ors.,
(2001) 5 SCC 247, it has been held:

"24.
Having
considered
the
aforesaid judgments of the Supreme Court
and the principles laid down in the
aforestated cases for grant of writ of habeas
corpus, it appears that the condition
precedent for instituting a petition seeking
writ of habeas corpus is the person for
whose release, the writ of habeas corpus is
sought, must be in detention and he must be
under detention by the authorities or by any
private individual. It is his detention which
gives the cause of action for maintaining
the writ of habeas corpus. If the allegations
in the writ of habeas corpus read as a whole
do not disclose the detention, in other
words, if there is no allegation of illegal
detention, the writ petition seeking writ of
habeas corpus is liable to be rejected
summarily. Such writ is available against
any person who is suspected of detaining
another unlawfully and the habeas corpus
Court must issue it, if it is shown that the
person on whose behalf it is asked for is
unlawfully deprived of his liberty. The writ
can be addressed to any person whatever -
an official or a private individual - who has
another in his custody."

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 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-a-vis 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
40 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

22. Still, it has to be inquired whether
the second petitioner has that kind of an ex
facie and impeachable right, vis-a-vis
respondent no.4, Abdul Sohrab, the minor's
grandfather. This Court had the advantage
of speaking to Abdul Sohrab and hearing
him in person. He has appeared in person
along with his wife and the minor, Sahil.
He did not choose to file a counter affidavit
and intelligibly placed his case before the
Court. He was accompanied by his wife.
On the fact being pointed out by the
learned Counsel for the petitioners, he
conceded that his wife is not the minor's
grandmother. She is a woman, whom the
fourth respondent has later married. It is,
therefore, evident that the minor does not
have his grandmother along with his
grandfather.
Rather,
he
has
a
step
grandmother. The minor's father is dead.
The second petitioner, Rehana Bano is
therefore, the only surviving parent of the
child. The Court also ascertained the parties
station in life and their resources. The
Court
was
informed
by
the
fourth
respondent, Abdul Sohrab that he is a
teacher by profession and has sufficient
means to maintain the minor. He said that
the mother, the second petitioner, has no
means of her own to maintain the minor.
She is dependent upon her parents, with
whom
she
stays
after
the
fourth
respondent's son, that is to say, Rehana
Bano's husband, Amjad Khan passed away.

23. The second petitioner, Rehana
Bano on the other hand stated before the
Court in person, which the Court permitted
despite
presence
of
learned
Counsel
representing her, that she is a Postgraduate
and undertakes private tuition. She is able
to earn reasonably well, besides receiving
generous support from her family, with
whom she stays after her husband's death.

24. This Court is mindful of the fact
that quite apart from what the personal law
of parties says about her right to custody
until the age of seven years as regards a
minor male child, the welfare of the minor
is certainly more secure in the mother's
hand. It is far more secure than in the hands
of an aging grandfather, who has married a
second
time
and
introduced
a
step
grandmother for the minor in his family.
The welfare of the minor, it is well
acknowledged, is not secured by money
alone. It is the product of multifaceted
grooming
that
involves
affection,
supervision,
guidance,
education,
inculcation of good human values and
many other factors of like genre, that go to
achieve
realization
of
the
human
personality. In this case, this Court is of
clear opinion that the minor's welfare under
9 All. Smt. Reetu & Anr. Vs. State of U.P. & Ors.
41
the circumstances noticed above is far
better secured with the mother than in the
hands of the grandfather, respondent no.4.

25. In the result, this Habeas Corpus
Writ Petition is allowed.

26. The rule nisi dated 28.08.2020 is
made absolute. The minor, Sahil, who has been
produced before this Court in compliance with
the rule nisi, is ordered to be handed over
forthwith to petitioner no.2, Smt. Rehana Bano,
who is present in Court. He shall remain in her
custody until otherwise ordered by a Court of
competent jurisdiction.

27. The fourth respondent, Abdul Sohrab,
who is the minor's grandfather, shall have
visitation rights to meet the child on the first
Sunday of every calendar month between 10:00
a.m. to 12.00 noon at the residence of the second
petitioner, Smt. Rehana Bano, situate at Village
Budkuda, Tehsil, Jakhania, Police Station
Budkuda, District Ghazipur. During these
visitations, the minor shall be provided free access
to his grandfather by the second petitioner, Smt.
Rehana Bano. She shall extend due courtesy to the
fourth respondent, Abdul Sohrab.

28. Let this order be communicated to
the learned District Judge, Ghazipur, the
learned Chief Judicial Magistrate, Ghazipur
and the Superintendent of Police, Ghazipur
by the office forthwith.
----------
(2020)09ILR A 41
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2020

BEFORE

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

Habeas Corpus Writ Petition No. 406 of 2020

Smt. Reetu & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vikrant Singh Parihar, Sri Vipul Kumar
Singh

Counsel for the Respondent:
G.A., Sri Ajit Kumar

A.