Arif Ahmad vs Irshad Ahmad and Others

O.P. Garg, J.—Smt. Afrin Bano has filed the present petition under Article 226 of the Constitution for a writ of Habeas Corpus commanding the Respondents to produce the Petitioner--Arif Ahmad, her minor male child and to direct them to handover his custody to her.

Briefly stated, the facts of the case are that Smt. Afrin Bano was married to Irshad Ahmad--Respondent No. 1 in November, 1991. Out of the wedlock, a male child, namely, Arif Ahmad, the Petitioner was delivered. Respondent Nos. 2 and 3 are the father-in-law and mother-in-law of Smt. Afrin Bano. It is alleged that Irshad Ahmad--Respondent No. 1, husband of Smt. Afrin Bano fell seriously ill. He along with his wife and the minor male child came to live for treatment at the house of his father-in-law, Zamil Uddin. On 27.4.1996, Irshad Ahmad escaped from the house after committing theft and also kidnapped the minor child. A report was lodged by Zamil Uddin. Notices were sent to Irshad Ahmad to give the minor male child in the custody of Smt. Afrin Bano. Respondent No. 1 is presently residing at Delhi while the Respondent Nos. 2 and 3, father-in-law and mother-in-law of Smt. Afrin Bano have shifted to Satna (Madhya Pradesh).

It is alleged that under the Muslims Law, Smt. Afrin Bano, being mother and natural guardian is entitled to the custody of the minor son upto the age of 7 years and the Respondents have no right to detain the child. According to Smt. Afrin Bano, she has been illegally deprived of the lawful custody of her male child, even though she still continues to be wife of Respondent No. 1. as she has neither been divorced nor has remarried with another person.

In pursuance of the notices issued to the Respondents, appearance has been entered on their behalf. A counter-affidavit has been filed by Abdul Ahmed, Respondent No. 2. Smt. Afrin Bano has also filed a rejoinder-affidavit.

Heard Sri N.D. Kesari, learned Counsel for the applicant and Sri Kamal Krishna, learned Counsel for the Respondents. Learned A. G.A. has also been heard.

It is an admitted fact that Smt. Afrin Bano was married to Irshad Ahmad and that out of the wedlock Arif Ahmad--the Petitioner took birth. At the time of filing of the petition, the age of Arif Ahmad Petitioner was about 3 years. There is no allegation that Smt. Afrin Bano has been divorced by her husband or that she has remarried with another person. There is no dispute about the fact that the Petitioner is presently in the custody of Respondent Nos. 2 and 3, who are living at Satna in Madhya Pradesh. It is an Indubitable fact that according to Muslim law, Smt. Afrin Bano being mother and natural guardian, is entitled to the custody of the minor son upto the age of 7 years. In this connection, a reference may also be made to paragraph 352, page 324 of Mulla''s Principles of Mohammedan Law (16th Edition), in which it is clearly mentioned that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years. 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. Undoubtedly, therefore, Smt. Afrin Bano is the natural guardian being mother of the minor and is entitled to the custody of minor male child, who is presently aged about 4 years.

Learned Counsel for the Respondents raised a preliminary legal objection about the maintainability of the present petition on the ground that an alternative remedy is available to the Petitioner by invoking the provisions of Guardians and Wards Act, 1890. In substance, the submission of the learned Counsel for the Respondents is that in view of the provisions contained in the Guardians and Wards Act, the present petition for issuance of writ in the nature of Habeas Corpus is not maintainable. A complete answer to this submission of the learned Counsel for the Respondents is to be found in a decision of a Division Bench of this Court in Vinayak Goyal v. Prem Prakash Goyal and Ors. 1981 ALJ 752. It was held that a writ of Habeas Corpus is available as a remedy in all cases of deprivation of personal liberty. A detention is said to be illegal which is incapable of legal Justification. In such circumstance, the person, who is entitled to the custody of the child, would have a right to move the court for his body to be produced for being handed over. In the case of a minor, his detention would be treated as illegal and unlawful if he is detained by any person against the wishes of the guardian who is entitled in law to have his custody.

It was further observed that holding back of the child by his grandfather and grandmother amounts to illegal and unlawful detention and as such, the Petitioner was entitled to a writ of Habeas Corpus. A reference may also be made to a case in Capt. Dushyant Somal Vs. Smt. Sushma Somal and Another, . In that case, an application was moved under Article 226 of the Constitution by the wife as against the husband for custody of her child. The application was allowed by the High Court. It was submitted before the Supreme Court that wife would have sought remedy under the Guardians and Wards Act and not by moving petition under Article 226 of the Constitution. This submission was repelled by the Supreme Court holding that the writ of Habeas Corpus has been rightly issued. The law is, therefore, well-settled that the writ of habeas corpus would be maintainable for the custody of a child despite the alternative remedy of filing an application under the Guardians and Wards Act. The preliminary objection raised on behalf of the Respondents is, therefore, rejected.

Now the moot point for consideration in the present petition is that whether the male child, aged about 4 years, who is presently in the custody of his grandparents (Respondent Nos. 2 and 3) should be given in the custody of his mother, namely, Smt. Afrin Bano. The Respondent No. 2 has taken the plea that the minor child is living with his grandparents quite happily and he is being looked after and taken care of well and, therefore, there is no justification for changing the custody of the minor. Apart from the fact that Smt. Afrin Bano, the real mother and natural guardian of the minor male child, has a legal right to retain the custody, the crucial question for determination which arises is as to what would be in the best interest of the minor. Whether the mother should be given preference in the matter of custody of the grandparents, is the focal point of controversy.

In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. AIR 1987 (SC) 3, it was observed by Hon''ble Supreme Court that whenever a question arises before court pertaining to the custody of a minor child, the matter is to be decided not on consideration of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. The expression ''welfare'' has to be read in the largest possible sense as meaning that every circumstance must be taken into consideration, and the court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do.

It is common knowledge that there is no better substitute for a mother. Though the grandparents can bestow only love and affection, but they cannot understand the psychology of the child better and help in shaping better than the mother, who has no adversial interest to the child. The mother is the best protector of minor''s interest. The Respondent Nos. 2 and 3 are comparatively old persons while Smt. Afrin Bano is a young lady. She can toil with the child for his betterment by devoting more time to the well being and education of the minor son. She is in a better position to look after the requirements of the minor and shape his destiny. There is nothing to doubt that the well being, education and happiness of the minor-Petitioner lies in selecting his mother over grandfather and grandmother. As observed in Vinayak v. Prem Prakash (supra), mother''s protection for such a child is indispensable. There cannot be any other protection which will be equal in measure and substance to that of the mother in such circumstances.

In Master Manveer Khera Vs. Manjeet Singh Khera alias Makhan Singh and others,, , it was observed that there cannot be any better heaven for the child on earth than the lap of his mother under whose benign guardianship, he will be able to become a better citizen of the nation. Therefore, without casting any aspersion on the capacity and capability of the grantparents. or doubting, in any manner, their involvement with the minor grand male child, it is held that mother''s protection is not only indispensable, but indefeasible. The grantparents certainly cannot be substituted for the mother. It would not be out of place to mention here that Irshad Ahmad father of the child has not come forward to claim the custody of the minor or to challenge the right of his wife. Smt. Afrin Bano to have the custody of the Petitioner. The capacity and capability of the mother, Smt. Irfan Bano to upbring, maintain and educate the minor have not been challenged by the Respondents. Smt. Afrin Bano is living with her parents, who appear to be quite affluent. She is, therefore, in a sound position to maintain, rear and educate her minor son.

In the backdrop of above discussions, it is held that Smt. Afrin Bano is entitled to the custody of her minor child, Arif Ahmad, aged about 4 years. She is not only legally entitled to have the custody of the child but the consideration of welfare of the minor demands that mother should be entrusted with his custody.

In the result, the petition succeeds and is allowed with costs. It is ordered that the Respondent No. 2, namely, Abdul Ahmed shall produce the child (Arif Ahmad, aged about 4 years, son of Irshad Ahmad) before this Court on 21.8.1997. Smt. Afrin Bano shall also remain present, in person, in the court to take the delivery of the child.

List on 21.8.1997 before the appropriate Bench.