Bilkis vs Munne Khan

K.M. Agarwal, J.

This Habeas Corpus petition by the wife against her husband is a usual offshoot of matrimonial differences and separate living of spouses and manifests their dispute about the custody of their male child, Id Khan alias Pappu, who is about 1 1/2 years of age.

The petitioner was married to the respondent in October, 1982 and they begot a son out of their wedlock. She expressed her desire before the Sub Divisional Magistrate, Joura to live with her father Munshi Khan at Gwalior and was accordingly sent with, her father by order, deted 8-2-1986 (Annexure "C") of the Sub Divisional Magistrate. Ever since 8-2-1986, she is living with her father at Gwalior. The son remained with the respondent. The petitioner has alleged that she was rescued by her father with the help of police from her miserable plight due to her misfortune and inability to satisfy the respondent''s greed for dowry, but her son Id Khan continues in the illegal custody of the respondent. She is claiming his custody and care on the ground that she is legally entitled to the same. She has asserted that her father is a driver and draws sufficient salary to maintain her and her minor son. The respondent has no permanent source of income. His four sisters and parents are dependent on him. He is intending to remarry. The petitioner has no intention either to divorce the respondent or to remarry. Under the circumstances, it is in the interest and welfare of the child that it should live in the care and custody of the petitioner.

The respondent has denied all material allegations against him. He has relied on the statements made by the petitioner before the Police and the Sub Divisional Magistrate, Joura. He has alleged mat the child was neglected by the petitioner and was, therefore, looked after by its paternal grand-mother. The petitioner was always keen to visit her father at Gwalior. Off and on, the respondent was taking her to her father at Gwalior, but did not allow her to spend the nights in his absence at Gwalior, because her father had to be away from home during night hours in connection with his duties as a driver in Madhya Pradesh State Road Transport Corporation. The respondent has also asserted that he is legally entitled to the care and custody of the child and that it would be in the welfare of the child to keep it in his care and custody.

Clauses (2) and (4) of Article 354 of the Mahomedan Law by Mulla provide that female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody if she goes and resides, during the subsistence of the marriage, at a distance from the father''s place of residence; or if she neglects to take proper care of the child. The petitioner has admitted in her petition that the marriage is subsisting and that she is residing at Gwalior, which is at a distance from Joura Alapur, the residential place of the child''s father, i.e. the respondent. In her statement on oath (Annexure "R-2") made before the Sub Divisional Magistrate, she voluntarily conceded that she wanted to go to Gwalior. She was going hale and hearty. Her son was living and would live with the respondent. She did not dispute that once she had run away from her matrimonial home during odd hours of the night, when she was not allowed to visit her maternal uncle at the time of Diwali and that she was detained in a Police Station House. These facts exhibit her attitude of indifference towards the child during the time she lived with her husband. We are, therefore, of the view that the petitioner is not legally entitled to the care or custody of the child.

The right to the custody of a minor''s person or property is not an absolute right or a right in the nature of property. It is a right commensurate with the welfare of the child. We, therefqrej proceed to examine the respective claims of the parties with reference to the welfare of the child.

The petitioner has not denied that she has no income of her own. She claims that her father gets sufficient income to maintain her and her minor son, but her father has not come forward with an offer to maintain the child. She has not denied her statement to the Police (Annexure "R-3") or the statement made in the Court of Sub Divisional Magistrate, Joura (Annexure "R-2"). It is apparent from her petition and statements that she has two sisters. One is married and living with her husband. The other is unmarried and living with her maternal uncle. The mother is dead. The father is a driver, who runs the Passenger Bus between Gwalior to Vijaypur. It cannot, therefore, be ruled out that the petitioner''s father is required to spend nights out of his house in connection with his duties as a driver. There is no male or female member in the family of her father, who could look after the petitioner or her son in the absence of her father. As against this, the respondent has his independent income. His parents and sisters are residing with him, who can take proper care of the child. We also find that contrary to her statements (Annexures "R-2" and "R-3"), the petitioner has falsely alleged in her petition that the child was snatched away by the respondent and that she was ill-treated by him due to her inability to satisfy his lust for dowry. We are, therefore, of the view that it is in the welfare of the child that it should remain in the custody of the respondent.

The learned counsel for the petitioner placed reliance in Gohar Begam Vs. Suggi alias Nazma Begam and Others, and in an unreported decision of this Court in Murtiaz Begum vs. Mubarak Hussain, Misc. Petition No. 739 of 1985, decided on 10-2-1986, in support of the petition. The facts of both these cases are quite distinguishable and at the same time, the view we are taking is not in any way in conflict with the view taken in the said decisions. It is, therefore, not necessary for us to discuss the cases at length.

In the result, this petition fails and it is hereby dismissed. In the circumstances of the case, there shall be no order as to costs of the petition.