# Ujaif @ Noor Alam & Ors v. State of U.P. & Ors. 358 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 3 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-12
- **Case number:** Habeas Corpus Writ Petition No. 499 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ujaif-noor-alam-ors-v-state-of-u-p-ors-358-indian-law-reports-allahabad-series-46869
- **Pages:** 7

## Headnote

A.G.A., Sri Araf Khan, Sri Lihazur Rahman
Khan

(A) Writ of habeas corpus - custody of a
minor child - an application seeking a writ
of habeas corpus for custody of a minor
child - principal consideration for the court -
to ascertain whether the custody of the
child can be said to be unlawful and illegal
and whether the welfare of the child
requires that the present custody should be
changed - where facts are disputed and a
detailed inquiry is required - court may
decline
to
exercise
its
extraordinary
jurisdiction and may direct the parties to
approach the appropriate court.(Para - 24,25)

(B) Civil Law - Guardians and Wards Act,
1890 (GWA) - Section 12 - court is
empowered to make interlocutory orders for
protection of a minor including an order for
temporary custody and protection of the
person or property of the minor, Section17 -
matter to be considered by the court in
appointing guardian - provisions of the
personal law are to be applied consistently
with the provisions of the GWA. (Para - 10)

Petitioner no.3 claims to be the father and natural
guardian of the petitioner nos.1 and 2 (aged about
six years and two years respectively) - wife of the
petitioner no.3 expired - petitioner nos.1 and 2
were taken away by the respondent no.4 (father
of the deceased wife) - custody of the petitioner
nos.1 and 2 with the respondent no.4 is illegal -
petitioner nos.1 and 2 be handed over to the
petitioner no.3. (Para -3)

HELD: - The facts of the present case do not in
any manner suggests that it is a case of illegal
custody and in View thereof, the present petition
seeking a writ of habeas corpus would not be
entertainable. As regards the claim for custodial
rights, it is always open to the parties to avail the
appropriate remedy for the purpose before the
proper forum. (Para - 27,28)

Habeas Corpus petition dismissed. (E-6)
List of Cases cited: -

## Text

3 All. Ujaif @ Noor Alam & Ors. Vs. State of U.P. & Ors.
357
conspiracy, but true or not, she is accused
of her husband's murder, along with a
paramour. If the charge were true, the
mother would not be an ideal person to
groom the young children, whose welfare
not only requires fulfillment of their
physical needs, but many other things,
which includes their moral character. That
apart, the circumstances which faintly
appear in this case about the crime, and
which this Court does not wish to know or
probe in greater detail, suggest that if the
charge were true, the minors' safety might
also be compromised.

11. Here, this Court must refer to the
interaction that we had with the minors.
The elder of them, Chetan, who is sevenyears-old, expressed his mind to the Court.
He appears to be a bright and intelligent
child, capable of clearly expressing his
mind and preference. He expressed his
dislike for his mother and said that he
wishes to stay with his aunt and uncle
(respondent nos. 5 and 9). He has said a
few things about his mother, which did not
appear to come from him spontaneously.
He has expressed his feelings of animosity
and dislike for his mother, that are
traceable to tutoring by his uncle and aunt
(respondent nos. 5 and 9). On being asked
why he disliked his mother, he candidly
told the Court that he was informed about it
all by his uncle and aunt (respondent nos. 5
and 9). Whatever Chetan told the Court,
appears to be heavily under the influence of
respondent nos. 5 and 9, who are his
kindred, but this is one facet of the matter.
For the present, the mother, indeed, faces a
charge about her husband's murder, in
relation to which, she is facing trial. There
is a possibility, remote or not so remote,
that she might be convicted and sentenced
on the charge relating to her husband's and
the minors' father's murder. If that were to
happen, while the minors are staying with
her, it would cause great trauma to the
minors, to know that their mother, with
whom they have bonded and are living,
stands convicted of the father's murder. Of
course, this is not so much to suggest or
believe, so far as this Court is concerned,
that the mother is guilty. All that this Court
says, bears in mind the minors' welfare, if
the contingency above mentioned were to
come true. It is certainly a situation which
ought to be avoided at the cost of depriving
the minors of their mother's care and
custody. Of course, if the mother is
acquitted, it would be open to her to apply
to the court of competent jurisdiction,
asking for her sons' custody, and if in that
contingency, the mother does apply, the
court, exercising jurisdiction under the Act
of 1890, would decide her claim about the
minors' custody, consistent with their
welfare, but unaffected by anything said in
this order.

12. Subject to what has been said
above, this Court does not find any good
ground to make the rule nisi absolute. It is,
accordingly, discharged.

13. In the result, this petition fails and
stands dismissed.
----------
(2021)03ILR A357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 499 of 2020

Ujaif @ Noor Alam & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Brijesh Kumar Mishra

Counsel for the Respondents:
A.G.A., Sri Araf Khan, Sri Lihazur Rahman
Khan

(A) Writ of habeas corpus - custody of a
minor child - an application seeking a writ
of habeas corpus for custody of a minor
child - principal consideration for the court -
to ascertain whether the custody of the
child can be said to be unlawful and illegal
and whether the welfare of the child
requires that the present custody should be
changed - where facts are disputed and a
detailed inquiry is required - court may
decline
to
exercise
its
extraordinary
jurisdiction and may direct the parties to
approach the appropriate court.(Para - 24,25)

(B) Civil Law - Guardians and Wards Act,
1890 (GWA) - Section 12 - court is
empowered to make interlocutory orders for
protection of a minor including an order for
temporary custody and protection of the
person or property of the minor, Section17 -
matter to be considered by the court in
appointing guardian - provisions of the
personal law are to be applied consistently
with the provisions of the GWA. (Para - 10)

Petitioner no.3 claims to be the father and natural
guardian of the petitioner nos.1 and 2 (aged about
six years and two years respectively) - wife of the
petitioner no.3 expired - petitioner nos.1 and 2
were taken away by the respondent no.4 (father
of the deceased wife) - custody of the petitioner
nos.1 and 2 with the respondent no.4 is illegal -
petitioner nos.1 and 2 be handed over to the
petitioner no.3. (Para -3)

HELD: - The facts of the present case do not in
any manner suggests that it is a case of illegal
custody and in View thereof, the present petition
seeking a writ of habeas corpus would not be
entertainable. As regards the claim for custodial
rights, it is always open to the parties to avail the
appropriate remedy for the purpose before the
proper forum. (Para - 27,28)

Habeas Corpus petition dismissed. (E-6)
List of Cases cited: -

1. Imambandi & ors. Vs Mutsaddi & ors., (1918)
ILR 45 PC 878

2. Athar Hussain Vs Syed Siraj Ahmed & ors.,
(2010) 2 SCC 654

3. Siddiqunnisa Bibi Vs Nizamuddin Khan & ors.,
AIR 1932 AII 215

4. Mohammad Ikram Hussain Vs St. of U.P. &
ors. AIR 1964 SC 1625

5. Kanu Sanyal Vs D.M., Darjeeling, (1973) 2
SCC 674

6. Nithya Anand RaghVsan Vs St. (NCT of Delhi)
& anr., (2017) 8 SCC 454

7. Sayed Saleemuddin Vs Dr. Rukhsana & ors.,
(2001) 5 SCC 247

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

9. Rachhit Pandey (minor) & anr. Vs St. of U.P.
& 3 ors., 2021 (92) ADJ 320

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Brijesh Kumar Mishra,
learned counsel for the petitioners, Sri
Vinod Kant, learned Additional Advocate
General alongwith Sri Arvind Kumar,
learned Additional Government Advocate
appearing for the State - respondents and
Sri Lihazur Rahman Khan appearing
alongwith Sri Araf Khan, learned counsel
for the respondent no.4.

2. The present petition for a writ of
habeas corpus has been filed with the
following prayers:-

"1. Issue a writ, order or direction
in the nature of Habeas Corpus directing
the respondents to produce the petitioner
3 All. Ujaif @ Noor Alam & Ors. Vs. State of U.P. & Ors.
359
no.1 and 2 before this Hon'ble court and
save the right of personal liberty of the
corpus from the illegal detention of
respondent no.4.

2. Issue a writ, order in the nature
of mandamus directing the respondents to
give the custody of petitioner no.1 and 2 to
the petitioner as he has the father and
natural guardian of petitioner no.3."

3. The petitioner no.3 claims to be the
father and natural guardian of the petitioner
nos.1 and 2 (aged about six years and two
years respectively). It is contended that the
wife of the petitioner no.3 expired on
27.05.2020 and thereafter, the petitioner
nos.1 and 2 were taken away by the
respondent no.4 (father of the deceased
wife). Counsel for the petitioners contends
that the custody of the petitioner nos.1 and
2 with the respondent no.4 is illegal and
that the custody of the aforesaid petitioner
nos.1 and 2 be handed over to the petitioner
no.3.

4. Sri Lihazur Rahman Khan, learned
counsel appearing for the respondent no.4,
has placed reliance upon the counter
affidavit and submits that the petitioner
no.3 himself had entrusted custody of the
petitioner nos.1 and 2 to the respondent
no.4 (maternal grandfather of the minor
children) and their maternal grandmother.
Reliance in this regard has also been placed
on a notarial affidavit of the petitioner no.3
himself, to support the contention that the
custody of the petitioner nos.1 and 2 was
handed over by him on his own volition to
the maternal grandparents of the minor
children.

5. Further reliance has been placed on
the principles enunciated in Sections 352
and 353 of Mulla Principles of Mahomedan
Law1 to contend that in case of a male
child below the age of seven years and a
female child who has not yet attained
puberty, the mother is entitled to the
custody (hizanat) and that failing the
mother, the custody belongs to the mother's
mother.

6. Counsel for the petitioners has not
disputed the fact with regard to the affidavit
having been executed by the petitioner
no.3, in terms of which the custody of the
petitioner nos.1 and 2 was handed over by
the petitioner no.3 to the respondent no.4
and the maternal grandmother. He has,
however, sought to contend that being the
father, he would be the natural guardian of
the minor children and would be entitled to
their custody.

7. Learned Additional Advocate
General
appearing
for
the
State
-
respondents submits that once the petitioner
no.3 does not dispute the fact that the
custody of the petitioner nos.1 and 2 (minor
children) was handed over to their maternal
grandparents by the petitioner no.3 himself,
it would not be a case of illegal custody and
the present petition seeking a writ of habeas
corpus would not be entertainable.

8. Rival contentions now fall for
consideration.

9. The law relating to guardians and
wards is governed in terms of the
Guardians and Wards Act, 18902 and an
order with regard to guardianship upon an
application filed by a person claiming
entitlement may be passed under the
aforesaid enactment.

10. The provision with regard to
making of an application regarding claims
based on entitlement of guardianship is
under the GWA and under Section 12
360 INDIAN LAW REPORTS ALLAHABAD SERIES
thereof the court is empowered to make
interlocutory orders for protection of a
minor including an order for temporary
custody and protection of the person or
property of the minor.

11. Section 17 of the GWA relates to
matter to be considered by the court in
appointing guardian and in terms thereof it
is provided that the court while deciding
the question of guardianship of a minor,
shall, as far as possible, do so consistently
with the law to which the minor is subject,
keeping in view the welfare of a minor.
Thus, the provisions of the personal law are
to be applied consistently with the
provisions of the GWA.

12. It is common ground between the
parties that insofar as the question of
custody is concerned, their rights are to be
governed by the personal law.

13.

The
matters
relating
to
"Guardianship of Person and Property" are
provided under Chapter XVIII of Mulla
Principles of Mahomedan Law and Part A
thereof
pertains
to
"Appointment
of
Guardians". In terms of Section 349 all
applications for the appointment of a
guardian of the person or property or both
of a minor are to be made under the GWA.
Further, Section 351 of Mulla Principles of
Mahomedan Law, which is in terms of
Section 17 of the GWA, imposes a duty
upon the court in appointing guardian to
make the appointment consistently with the
law to which the minor is subject, keeping
in view the welfare of the minor.

14. The subject matter relating to
"Guardianship of a Person of a Minor" is
dealt with under Part B of Chapter XVIII of
Mulla Principles of Mahomedan Law, and
Sections 352 and 353 thereof are extracted
below:-

"352. Right of mother to custody
of infant children.-- The mother is entitled to
the custody (hizanat) of her male child until
he has completed the age of seven years and
of her female child until she has attained
puberty. The right continues though she is
divorced by the father of the child (e), unless
she marries a second husband in which case
the custody belongs to the father (f).

353. Right of Female relations in
default of mother.--Failing the mother, the
custody of a boy under the age of seven
years, and of a girl who has not attained
puberty, belongs to the following female
relatives in the order given below:--

(1)
mother's
mother,
how
highsoever;

(2)
father's
mother,
how
highsoever;

(3) full sister;

(4) uterine sister;

(5) consanguine sister;

(6) full sister's daughter;

(7) uterine sister's daughter;

(8) consanguine sister's daughter;

(9) maternal aunt, in like order as
sisters; and

(10) paternal aunt, also in like order
as sisters."

15. A conjoint reading of the
aforesaid provisions indicates that the
mother is entitled to the custody (hizanat)
of her male child until he has completed the
age of seven years and of her female child
until she has attained puberty, and 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 female
relatives in an order under which the
mother's mother is shown first.
3 All. Ujaif @ Noor Alam & Ors. Vs. State of U.P. & Ors.
361

16. The custody of the two minor
children (male aged about six years and
female aged about two years) with their
maternal
grandmother
and
maternal
grandfather cannot therefore be stated to be
prima facie illegal. It may, however, be
added that the entitlement of the mother or
failing the mother, the mother's mother of the
minor child, is up to a certain age according
to the sex of the child, but she is not the
natural guardian and it is the father who is the
legal guardian under the personal law as held
in the decision of the Privy Council in
Imambandi and others v Mutsaddi and
others3.

17. The question of custody is different
from the question of guardianship and the
rights with regard to custody can be
independent of and distinct from that of
custody, in the facts and circumstances of
each case, as held in Athar Hussain v Syed
Siraj Ahmed and others4, wherein it was
held that though the father can be the natural
guardian, custody can be entrusted to another
person keeping in view the welfare of the
children. In the facts of the case it was held
that under the personal law governing the
children, maternal relatives shall have
preference for custody.

18. In the case of Athar Hussain
(supra) while considering the question
regarding the right of a female relation of a
minor in distinction with the right of
guardianship
under
the
personal
law,
reference was made to an earlier decision in
Siddiqunnisa Bibi v Nizamuddin Khan
and others5, wherein it was stated as
follows:-

"A question has been raised before
us whether the right under the Mahomedan
law of the female relation of a minor girl
under the age of puberty to the custody of the
person of the girl is identical with the
guardianship of the person of the minor or
whether it is something different and distinct.
The right to the custody of such a minor
vested in her female relations, is absolute and
is subject to several conditions including the
absence of residing at a distance from the
father's place of residence and want of taking
proper care of the child. It is also clear that
the supervision of the child by the father
continues in spite of the fact that she is under
the care of her female relation, as the burden
of providing maintenance for the child rests
exclusively on the father..."

19. The question of custody and
guardianship were held to be independent
and keeping in mind the paramount
consideration of the welfare of the children,
their Lordships in the case of Athar
Hussain (supra) held as follows:-

"34.
Thus
the
question
of
guardianship can be independent of and
distinct from that of custody in facts and
circumstances of each case.

35.
Keeping
in
mind
the
paramount consideration of welfare of the
children, we are not inclined to disturb their
custody which currently rests with their
maternal relatives as the scope of this order
is limited to determining with which of the
contesting parties the minors should stay
till the disposal of the application for
guardianship."

20. The writ of habeas corpus is a
prerogative writ and an extraordinary
remedy. It is writ of right and not a writ of
course and may be granted only on
reasonable ground or probable cause being
shown, as held in Mohammad Ikram
Hussain v State of U.P. and others6 and
Kanu Sanyal v District Magistrate
Darjeeling7.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The object and scope of a writ of
habeas corpus in the context of a claim
relating to custody of a minor child fell for
consideration in Nithya Anand Raghvan v
State (NCT of Delhi) and another8, and it
was held that the principal duty of the court
in such matters is to ascertain whether the
custody of the child is unlawful and illegal
and whether the welfare of the child
requires that his present custody should be
changed and the child be handed over to
the care and custody of any other person.

22. Taking a similar view in Sayed
Saleemuddin
v
Dr.
Rukhsana
and
others9, while considering the scope of a
habeas corpus petition seeking transfer of
custody of children it was held that the
principal consideration for the court would
be 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 the present custody
should be changed and the children should
be left in the care and custody of some one
else. It was stated thus:-

"11. ...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..."

23. The question of maintainability of
a habeas corpus petition under Article 226
of the Constitution of India for custody of a
minor was examined in Tejaswini Gaud
and others v Shekhar Jagdish Prasad
Tewari and others10 and it was held that
the petition would be maintainable where
detention by parents or others is found to
be illegal and without any authority of law
and
the
extraordinary
remedy
of
a
prerogative writ of habeas corpus can be
availed in exceptional cases where ordinary
remedy provided by the law is either
unavailable or ineffective. The observations
made in the judgment in this regard are as
follows:-

"14. Writ of habeas corpus is a
prerogative process for securing the liberty
of the subject by affording an effective
means of immediate release from an illegal
or improper detention. The writ also
extends its influence to restore the custody
of a minor to his guardian when wrongfully
deprived of it. The detention of a minor by
a person who is not entitled to his legal
custody is treated as equivalent to illegal
detention for the purpose of granting writ,
directing custody of the minor child. For
restoration of the custody of a minor from a
person who according to the personal law,
is not his legal or natural guardian, in
appropriate cases, the writ court has
jurisdiction.

x x x

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
3 All. Pankaj & Ors. Vs. State of U.P. & Ors.
363
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."

24. It is therefore seen that in an
application seeking a writ of habeas
corpus for custody of a minor child, as is
the
case
herein,
the
principal
consideration for the court would be to
ascertain whether the custody of the child
can be said to be unlawful and illegal and
whether the welfare of the child requires
that the present custody should be
changed.

25. In a case where facts are
disputed and a detailed inquiry is
required, the court may decline to
exercise its extraordinary jurisdiction and
may direct the parties to approach the
appropriate court.

26. The aforementioned legal
position has been discussed in a recent
judgment of this Court in Rachhit
Pandey (minor) and another v State of
U.P. and 3 others11.

27. The facts of the present case do
not in any manner suggests that it is a
case of illegal custody and in view
thereof, the present petition seeking a
writ of habeas corpus would not be
entertainable.

28. As regards the claim for
custodial rights, it is always open to the
parties to avail the appropriate remedy
for the purpose before the proper forum.

29. The observations made hereinabove
are prima facie in nature and the same would
be without prejudice to the rights and
contentions of the parties which may be
agitated in appropriate proceedings.

30. The petition fails and is accordingly
dismissed.
----------
(2021)03ILR A363
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

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

Habeas Corpus Writ Petition No. 828 of 2020

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

Counsel for the Petitioners:
Sri Phool Chandra

Counsel for the Respondents:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A, 304-B - Dowry
Prohibition Act, 1961- Section 3/4 - Writ
of habeas corpus - Custody of a minor
child-
pendency
of
a
criminal
case,
wherein the father has been charged of
causing the death of the minor's mother -
is a relevant factor required to be
considered before an appropriate order
could be passed - prerogative writ of
habeas corpus, is in the nature of
extraordinary remedy - which may not be
used to examine the question of custody
of
a
child
except
where
in
the
circumstances of a particular case, it can