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Judgment
Ravi S, Dhavan, J.—A widowed mother, Musamat Nusrat Bano, filed the present habeas corpus petition complaining to the Court that her two children Km. Rafat Bano and Km. Siffat Bino, both girls were at the time of the filing of petition, nine years and seven years respectively, have been detained by the children''s paternal grand patents and their uncle, her late husband''s brother, and she desires the custody of her children.
The petition was resisted by the opposite parties first on the academic plea that under Muslim Law the grand parents may have the custody of the children ; that in the present case the mother of the children has married her husband''s brother and she has been divorced
These submissions on behalf of the opposite parties were examined by the Courts On the submission of her second marriage the facts belie the record. The mother has never married her brother-in-law after the death of her husband. The submission of the paternal grand parents is only a subterfuge to deny her access to her children. Further it is now on record that her brother-in-law and uncle to the children got married to one Shayasta Rahman daughter of Abdul Rahman
The other contention of the Respondent grand parents was too general and not compatible with the general principle on guardianship under Muslim Law. It is correct that if a mother is not available, the custody of the children may go to the grand parents. But this is too sweeping and general a statement so as to become a recognised precedent in Muslim Law. In a developed society, anthropology reveals every personal law based on custom makes arrangements in matters of marriage, guardianship and adoption, and inheritance with exactness and detail. Muslim Law, Is no exception.
This is a case of guardianship. The mother is a widow. She has two little girls. The widowed mother has not (remarried. What does the personal law for Muslims observe for them? There are guidelines on this aspect. These are ;
CUSTODY OF CHILDREN
"A woman repudiated by her husband is enitied to the custody of her child till it attains puberty in the case of a body, or in the case of a girl till her marriage followed by consummation
If the mother be dead or has remarried, the person next entitled to the custody of the chid is the grand-mother ; after her comes the maternal aunt.
Failing maternal relations, the right will pass to the child''s sisters and paternal .turns ; falling these, to the child''s agnatic relations." Handbook of Muslim Jurisprodence, Bakarai-al-Sa''b of Ibn- Abu Zayad, translation by Alexander Devi Russel and Abdullah--al-Ma''-Mun, Subrawardy, Seema publications Delhi.
On this aspect. Professor Asaf A.A. Fyzee quoting another authoritative text by Bail He. records; ''The mother is, of all person, the best entitled to the custody of her infant child during marriage and after separation from her husband, unless she be an apostate, or wicked, or unworthy to be trusted.'' Outlines of Mubammadan, Law, N Edition, Asaf A.A. Fyzee, Oxford University Press, Delhi.
On the custody of infant children. Islamic law finds a. mother. She does not lose custody of her little children only for the reason that she may not remain man led to her former husband. Asaf A.A. Fyzee (ibid).
But, should she remarry to take another husband, then, the custody of the children begotten between her and her former husband would normally belong to the former husband If he Is otherwise fit and proper person to be appointed a guardian of his children. Mir Mohamed Bahauddin Vs. Mujee Bunnisa Begum Sahiba, On other hand it has also been held that a Muslim woman was entitled to the custody of her children and the fact that she did not live with her husband was not a disqualification. Zynab Bi alias Bibijan Vs. Mohammad Ghouse Mohideen, -
It is only that failing the mother and female relations, that male relations may be entitled to the custody of a Muslim child. The order in which female relations may not succeed and the male relations may, has been enjoined in Islamic law.
In the facts and circumstances of the present case, the Court has come to the conclusion that the young widow Mussamat Nusrat Bano was harassed by her In-laws when they detained the two little girls to create a case that their daughter-in-law married their younger son. This was only a ruse to seek custody and guardianship of the two little girls with the male relations of the husband, that Is to say, their late elder son, the children''s father Their younger son had never married Nusrat. Bano and let the record be set right on this. This case is an example of the games people play with personal law. This is an unethical game. This is immoral.
The two little girls, it is reported to the Court since they were last united with their mother under the orders of this Court, have taken to their mother and their mother to them; may they all live happily.
This petition succeeds and is allowed with costs.