K.M.R. Sultan Akbarsha vs Sultanasofia Begum and Others

This petition under Article 226 of the Constitution of India has been file by the petitioner for the issue of a writ of habeas corpus for directing the

first respondent herein to produce the body of the petitioner''s minor son, Sultan Arafsha Anwar alias Perosha before court and for his being set at

liberty by his custody being handed over to the natural guardian, viz, the petitioner himself. This first respondent is the daughter of one S. M.

Mohamed Miskeen, a Chartered Accountant of Tiruvarur, Thanjavur district. She was given in marriage to the petitioner who is none other than

her paternal uncle''s son, on 29-8-1974. In about a year''s time the minor son Sultan Arafsha Anwar alias Perosha (hereinafter referred to as

Perosha) was born to them. There were differences of opinion between the petitioner and the first respondent, and eventually, it was found that

they could not lead life together as man and wife. The first respondent came away with the child to her father''s house and was living with her

parents. Certain moves of the petitioner made the first respondent apprehend that the petitioner was likely to snatch away the child from her.

Hence she filed a petition O.P. No. 45 of 1977 on 12-9-1977 under the Guardians and Wards Act, before the District Court at Nagapattinam

and also obtained an order of interim injunction against the petitioner in I.A. No. 172 of 1977 restraining him from interfering with her custody of

the child. At that stage of matters, certain elders intervened and it was agreed that the petitioner should divorce the first respondent by presenting

''talaq'' and, in return, the petitioner should be paid a sum of Rs. 13,000/-, and his mother should be paid a sum of Rs. 11,300/- by the first

respondent''s father. After the divorce was effected the first respondent has been staying with her father and educating Perosha in an English

medium school at Tiruvarur.

Subsequent to the divorce the petitioner has married another woman. Likewise, the first respondent also has married one T. A. Munawardeen,

son of the second respondent. It is common ground that through the second marriage, the first respondent has got a child now.

It is in this backdrop of matters the petitioner came forward with this petition, for the issue of a writ of habeas corpus. The petitioner alleges in

his affidavit that by reason of the first respondent''s remarriage, she has become disentitled in law to have custody of Perosha. His further case is

that the first respondent''s husband, Munawardeen, is employed in Dubai and he (the petitioner) had reliable information that Munawardeen was

about to take the first respondent as well as Perosha to Dubai and neither Munawardeen nor the first respondent has any right to take Perosha to

Dubai. Hence the petitioner has prayed for restoration of the custody of Perosha to him by means of an appropriate writ to the first and second

respondents. The third respondent the Chief Immigration Officer, Madras has been impleaded as a formal party in order to put him on notice of the

petitioner''s right to have custody of minor Perosha.

The first and second respondents have filed detailed counter-affidavits. In her counter-affidavit the first respondent has stated that she was

subjected to ill-treatment and cruelty by the petitioner and, unable to bear such treatment she was forced to return to her parent''s house. She has

also stated the circumstances under which she filed O.P. 45 of 1977, on the file of the District court Nagapattinam and as to how the marital ties

between herself and the petitioner were snapped by the pronouncement of ''Talaq'' by the petitioner. The further averments are that one of the

terms of the compromise entered into between the parties was that the petitioner was to give up his rights over minor Perosha and the first

respondent was to have the custody of the child all through and it would be her look-out and responsibility to bring up the boy. She has also stated

that the petitioner has no interest in or love for the minor boy and the present petition is only intended to harass her. She has stated that the

remarriage cannot be treated as a disqualification for her having custody of the minor, inasmuch as she as well as her second husband are devoted

to the boy''s welfare. As regards the averments that she boy to Dubai, the first respondent has stated that there is no such proposal at all and she is

prepared to given solemn assurance that the minor boy will not be taken to Dubai as apprehended by the petitioner. Lastly, the first respondent has

stated that the petitioner is not a fit and proper person to have the custody of the minor.

The second respondent, in his counter-affidavit, has set out pleas more or less similar to the one contained in the counter-affidavit of the first

respondent. In addition, he has stated that his son, Munawardeen, was employed in Dubai, but he too has given up the employment and returned

to India and settled down here and there is no proposal whatever of his son going back to Dubai and taking along with him the first respondent and

her children.

The petitioner has filed a reply affidavit and has traversed therein the various averments contained in the counter-affidavits of the first and second

respondents. He has denied the averment that at the time of the compromise he had agreed to give up his parental right over minor Perosha.

Before dealing with the contentions of the counsel for both sides, it is appropriate to mention that subsequent to the filing of this petition the first

respondent has filed a petition, O.P. No. 63 of 1981 u/s 10 of the Guardians and Wards Act, on the file of the District Court, Nagapattinam

praying that she may be appointed guardian for the minor Perosha.

Mr. Pichai learned counsel for the petitioner, strenuously contended before me that as per the Mohammedan Law, a mother is entitled to the

custody of a male child only till his completion of 7 years of age and even that right will stand forfeited if she marries a second husband and so, in

this case, the first respondent has married Munawardeen as her second husband, she must hand over custody of Perosha to the petitioner. It may

be stated here that Perosha has completed six years of age and is running his seventh year. The further submission of learned counsel was that the

filing of petition O.P. 63 of 1981 by the first respondent is of no consequence and the petitioner is entitled to get reliefs in this petition itself.

According to Mr. Pichai, O.P. 63 of 1981 has been filed in order to drag on the proceedings and to wantonly deprive the petitioner, for

considerable length of time of the custody of his minor son.

Opposing the contentions of Mr. Pichai, Mr. C. Subramanian, learned counsel for the respondents, argued that the prime factor for

consideration by the court is the welfare of the minor and for determining that question, a full-fledged enquiry is called for and such an enquiry

cannot be held in a petition under Art. 226 of the Constn. since these proceedings are of a summary nature. The counsel then stated that the only

ground put forth by the petitioner for seeking custody of the minor is that the first respondent and Munawardeen are likely to take away the boy to

Dubai, but that apprehension has been proved to be a baseless one by the categoric statements made by the respondents in their respective

counter-affidavits. Hence, Mr. Subramanian submitted that the petitioner may be directed to work out his rights before the District Court,

Nagapattinam, in O.P. 63 of 1981, and denied reliefs in this petition.

As regards the maintainability of the petition, Mr. Pichai invited our attention to two Bench decisions of this court which have been referred

with approval by the Supreme Court. The two Bench decisions are Subbuswami Goundan Vs. Kamakshi Ammal and Another, and S. Rama Iyer

Vs. K.V. Nataraja Iyer, . It has been held in these cases that the remedy u/s 491 Cr.P.C. is open to a guardian who prays for an order for

obtaining custody of a minor even though he can as well have recourse to the provisions of the Guardians and Wards Act. These decisions have

been referred with approval in Gohar Begam Vs. Suggi alias Nazma Begam and Others, . The facts of the case before the Supreme Court were,

however, somewhat unusual. The child, Anjan, whose custody was sought for in that case was the illegitimate daughter of the appellant who was a

Muslim woman. The child was, at the date of the application, less than six years old. The respondent, the sister of the appellant, who refused to

hand over custody of the child, was not married, but was in the keeping of a man. It was under these circumstances, the Supreme Court

disapproved the view taken by the Bombay High Court that as the case raised various controversial questions such as, the paternity of the child,

the respondent making the appellant live in the keeping of different persons etc. the proper forum for the appellant (mother) was to move a civil

court under the Guardians and Wards Act, for the Custody of the child and the mother was not entitled to the issue of a writ u/s 491 Cr.P.C. in her

favour. Yet another decision cited by Mr. Pichai in this behalf is Narasimha Rao v. G. Manikyamma (1967 MLJ (Cri) 839). To buttress the

petitioner''s contention that the petitioner is the natural guardian of the minor and has therefore supremacy of right to claim the custody of the minor,

Mr. Pichai placed before me the following authorities Mt. Taj Begum v. Ghulam Rasul, AIR 1925 Lah 250, wherein it was held that the first right

to guardianship and custody of a minor boy is in the father, he being his natural guardian; Jamuna Prasad Vs. Mst. Panna and Others, , in which

case it was held that ordinarily the natural guardian should be appointed co-guardian under the Guardians and Wards Act and only when he is

found to be unfit or his interests are adverse to those of the minor, a person other than the natural guardian should be appointed guardian for the

person of the minor and Abu Baker Vs. Sauda Beevi, , wherein the decision is that under the Mohamedan Law, the father is the legal guardian of

the minor boy and the fact that the father had a right under the Guardians and Wards Act is no justification for denying his right u/s 491 Cr.P.C.

As against these decisions, Mr. Subramaniam placed reliance on the following cases, to contend that though a guardian is entitled to move the

High Court for the issue of a writ of habeas corpus for obtaining custody of a minor the right should be made available to the guardian only in

exceptional cases, and not as a matter of rule. The further argument was that it is the civil court that is more suited to decide the question as to who

should be the guardian of the minor and to whose custody the minor should be handed over, and not the writ court. By way of authority for this

proposition the counsel placed before us the following cases. The first is Shaik Moidin Vs. Kunhadevi, . In that case a Muslim father filed a petition

u/s 491 Cr.P.C. for the issue of a writ of habeas corpus to get the custody of his son aged 7 or 8 years. The Full Bench while holding that prima

facie the petitioner-father did not appear to be a suitable person to have custody of his son, held that ''if the father wishes to assert his rights he can

try to set the court in action locally where the evidence would be much more easily obtainable and where the witnesses can be seen and if

necessary cross-examined u/s 25 Guardians and Wards Act. Unfortunately the Full Bench decision has not been noticed by the Division Bench

which decided S. Rama Iyer Vs. K.V. Nataraja Iyer, . The next case cited by Mr. Subramanian is D.P. Sampath Vs. Govindammal and Others, .

The ratio laid down in this case is that the prerogative writ of habeas corpus is an extraordinary remedy and is generally sought for upon sufficient

cause, only in cases where the ordinary remedy provided by law is not available or is inadequate or ineffective in the circumstances of a particular

case. The ratio in the above cases has been followed by another Division Bench of this court to which one of us (Maheswaran, J.) was a party in

Rajeswar v. Bagavathimuthu Pillai, 1979 TLNJ 417 : WP 1428 of 1978, Order dt. 21-6-1978. The same view has been taken by yet another

Bench in an unreported case, viz., WP 2015 of 1979 K. Jothi Saraswathi v. K. Jagadeesan, of this court. But, on account of the peculiar facts in

that case, it was held that the petitioner therein (mother) was entitled to the issue of a writ of habeas corpus for expeditiously obtaining custody of

her minor child below the age of five years. Yet another decision is Mrs. Premila Devi Vs. R. Jayachandran, Sub-Inspector of Police, Pallipalayam

Police Station and Another, wherein it was held that the relative merits of the claim for custody of a minor by the father on the one hand and the

mother on the other can be discussed and decided after recording of evidence and the matter can be effectively dealt with in proceedings under the

Hindu Minority and Guardian ship Act, (In that case, the parties were Hindus) and the Guardians and Wards Act, and there was no extraordinary

circumstances for the matter being dealt with under Art. 226 of the Constn.

Refuting the contention of the petitioner''s counsel that the petitioner, being the natural guardian, has an indefeasible right to get the custody of

the minor, Mr. Subramaniam submitted that the trend of thinking by courts in modern times is not to apply the principles of the personal law for

parties in a blind mechanical manner, but to apply the existing principles in a judicious manner. In other words, his argument was that if the interests

of justice required a deviation from the texts of the personal law, then the court should not be averse to taking such a course of action. By way of

authority for this contention he relied upon the following passage occurring in the preface to the 16th edition of the Principles of Mohamedan Law

by Mullah (incorporated in the 18th Edn). The relevant passage occurring at page (vi) (of the prefatory portion) reads as follows -

In recent years the Supreme Courts of India and Pakistan have shown some boldness in, applying the existing principles of new cases ......... The

court accordingly differed from the rules regarding the custody of the minor as given in the text books and on which there was no unanimity and

adopted a course conducive to the welfare of the minor"".

He also referred to L. Chandran Vs. Venkatalakshmi and Another, . The following passage occurring in para 11 of the judgment may be

extracted with advantage :-

It is now well known that this broad view of the right of the father to claim the custody of the minor child without reference to the welfare of the

minor, is not acceptable to law. It appears to us that such a view is not only untenable on authorities, but is clearly wrong in constitutional principle.

Child is a person within the meaning of Art. 21 of the Constitutional. It has, therefore, a right to its life as guaranteed by Art. 21 of the Constitution.

The word ''life'' should be understood in this context as expansively as it has been understood in other contexts as comprehending more than mere

animal existence (See Kharak Singh Vs. The State of U.P. and Others, . The theory that the father has an unlimited and unrestricted right to the

custody of the minor child even to the extent of disregarding the welfare of the child would be theoretically inconsistent with this constitutional

provision. It is no doubt true that the minor is not in a position to express its preference. But that incapacity makes no difference to the legal theory

with which we are now concerned, because that incapacity would not take away the child''s inalienable right to life recognised by the Constitution.

The recognition of an unlimited right in another person, be it the father, to the custody of the ward would not only be constitutionally inconsistent

with this right of the minor under Art. 21 of the Constitution, but it would also be inconsistent with the Constitution power and duty of this court to

protect and enforce the fundamental right to life of all persons including that of the minor. This argument of the learned counsel for the petitioner

that the father has an unlimited right to claim the custody of the minor child without reference to the welfare of the minor child must, therefore, be

rejected.

In the view, we propose, taking of the matter we do not fee called upon to go into the merits of the case. The petitioner has, undoubtedly, a

right in law to invoke the jurisdiction of this court under Art. 226 of the Constn. for the issue of a writ of habeas corpus for causing the production

of his minor son in court and for custody being handed over to him. The argument that he has an alternative remedy under the Guardians and

Wards Act, and therefore, the writ petition is not at all maintainable is not a tenable contention. At the same time, we must hasten to add that the

writ jurisdiction of this court should not be exercised in such a manner as to by-pass the normal remedies available to the petitioner under the Civil

law. The view taken in Subbuswami Goundan Vs. Kamakshi Ammal and Another, ; S. Rama Iyer Vs. K.V. Nataraja Iyer, and Narasimha Rao v.

G. Manikyamma 1967 MLJ (Cri) 839 that the existence of an alternative remedy cannot act as a bar to a guardian approaching the court for the

issue of a writ of habeas corpus under S. 491 Crl.P.C. is some what too general in its terms. On the other hand, we find that the proper and

correct view to be taken is the one set out in the Full Bench case as well as the other Bench decisions, viz, Shaik Moidin Vs. Kunhadevi, , D.P.

Sampath Vs. Govindammal and Others, , Rajeshwari v. Bagavathimuthu Pillai, 1979 TLNJ 417 : WP 1428 of 1978 order dated 21-6-1978, and

Mrs. Premila Devi Vs. R. Jayachandran, Sub-Inspector of Police, Pallipalayam Police Station and Another, . We wish to emphasise the fact that in

applications of this kind, it is not the superiority of the right of the father as natural guardian to have the custody of the minor child that needs

consideration by the court, but the welfare of the minor in all its aspects. In other words, whoever may be the claimant for getting custody of the

child, what should be uppermost in the mind of the court is the interests of the minor child. If it is found that the handing over of the custody of the

child to its father will not be in its interests, the court may well refuse to pass an order in favour of the father regarding the custody in spite of the

fact that the personal law applying to the parties had laid down that the father is the natural guardian. We are therefore of opinion that merely

because the petitioner happens to be the father of minor Perosha, he cannot expect, as of right, an order in his favour in these proceedings. He

must further satisfy the court that the welfare and interests of the minor concerned warrant that the minor is removed from the custody of the first

respondent and placed in his custody. As far as this aspect is concerned, a proper decision can be rendered only after evidence is recorded on

both sides. Only after the evidence is recorded the court will be in a position to know as to who would be the proper person with whom the

custody of the minor should be entrusted. For following such a procedure, undoubtedly, the civil court exercising its power under the Guardians

and Wards Act, is more suited than this court exercising writ jurisdiction. The only circumstances in which we can justifiably deviate from this

procedure is where the life, health and morale of the minor are in danger or where the child is likely to be removed from the jurisdiction of the court

clandestinely or within a short time or where the party having custody of the child is ex facie shown to be of depraved and immoral character and it

will not be conducive to the interests of the minor to leave it in the custody of the person any longer. None of these conditions exists here. The only

ground put forward in the petition is that the first respondent was about to take the minor to Dubai with her present husband. This averment has

been refuted in categoric terms by the first and second respondents and we have no reasons to doubt the correctness of their statements. We do

not, therefore, find any urgency or extraordinary feature in the case which would justify our exercising the special writ jurisdiction of this court and

issuing a writ in favour of the petitioner. We are clearly of opinion that the proper course to be followed is to direct the parties to have their rights

regarding the custody of the minor child adjudicated by the District Court, Nagapattinam. We may also mention here about a contingency which is

likely to arise if there is a blanket exercise of the writ jurisdiction vested in this court in matters regarding the custody of children. Irrespective of an

order passed by the High Court in exercise of its writ jurisdiction regarding the custody of a minor, it will be open to the father, mother or in their

absence, other close relations of the minor, to move the civil court under the Guardians and Wards Act, for an order of appointment as guardian of

the minor and for suitable orders regarding the custody of the minor. The enquiry in such proceedings will be a full-fledged one, i.e., recording of

evidence, cross examination of witnesses etc. unlike the enquiry in a petition under Art. 226 of the Constn. The Civil Court, after taking into

consideration, the evidence adduced by the parties before it, may well come to the view that the custody of the minor should be entrusted to some

other person rather than the person approved by the High Court in the writ proceedings in the best interests and welfare of the minor. In such a

case, there will be a conflict of decisions and resultant anomalous situations. Such a situation should also be avoided. On account of this factor

also, we think that the exercise of writ jurisdiction in matters relating to the custody of minors should restricted only to those cases where the

expediency of the situation warrants such exercise of powers. Inasmuch as the first respondent has already filed a petition under the Guardians and

Wards Act, the petitioner may put forth his claim in those proceedings for obtaining the minor''s custody and seek appropriate reliefs.

In view of this conclusion, we are not expressing any opinion on the question as to whether it is the petitioner or the first respondent who is the

better suited person to have the custody of the minor.

For the aforesaid reasons the rule nisi cannot be made absolute. The writ petition will therefore stand dismissed. There will be no order as to

costs.

After the pronouncement of the order Mr. Pichai, learned counsel for the petitioner, submits that the first respondent may be asked to give an

undertaking that she will not take the minor out of India till the disposal of O.P. 63 of 1981 on the file of the District Court, Nagapattinam. Mr.

Subramaniam, learned counsel for the first respondent agrees to file an affidavit sworn to by the first respondent to the said effect before the

District Court, Nagapattinam. Accordingly he is instructed to file an affidavit to the said effect within a fortnight from this day after giving notice to

the petitioner''s counsel about the filing of the affidavit.

The petitioner''s counsel also prays that a direction may be given to the learned District Judge. Nagapattinam to dispose of the petition O.P. 63

of 1981, expeditiously. The learned District Judge, Nagapattinam is instructed to enquire into the petition O.P. 63 of 1981, as expeditiously as

possible.

Order accordingly.