M. Shahar Banu vs M. Umar and Another

Srinivasan, J.—This petition is filed by the wife of the first respondent for issue of habeas corpus directing the respondents to produce the

petitioner''s two sons Mohammed Udumani, aged about 4 and Mohammed Bilal, aged about 2. The second respondent is the Inspector of Police,

All women Police Station, North Madras.

The averments in the affidavit filed in supports of the petition are as follows:

The petitioner married the first respondent on 11.8.1988 in accordance with Islamic rites. After marriage, she lived with the first respondent in

Maskan Chavadi, Madras. On 28.7.1989, the first son was born, on 19.3.1992 the second son was born. From the beginning of the married life,

the first respondent has not treated the petitioner properly and was ill-treating her both physically and mentally. The petitioner was tolerating all the

ill treatment and harassment. She could not understand the reason for her husband''s strange behaviour for quite a long time. A few months before

the filing of the petition, she was shocked to know that her husband used to consume liquour and was a womanizer. He used to narrate to her his

plesant experience with the other women in order to insult her and provoke her. She did not react because of her children. On 10.1.1994, he left a

bunch of letters in the house. She came to know that he was having affairs and extra-marital relationship with several women spending money there

for. Immediately, she contacted her brothers and showed the letters. They took xerox copies of the same and handed over the same to her. When

she returned home, her husband asked for the letters. When she refused to hand over the same, he beat her, as usual, black and blue and caused

bleeding injuries and he left her only after receiving the letters from her. Her brothers also came and questioned his conduct. He abused them in

filthy language and insulted them. They were chased out by him. After they left the house, he again beat her and tortured her to the maximum

possible and drove her out after snatching away her children. She went to her elder brother''s house and took assylum there. She tried her level

best to join her husband and children through elders, well-wishers and community elders. All the efforts were in vain, since he did not respond to

the words of the elders. On 22.1.1994 she received a registered and ante-dated letter staling that her husband pronounced ''talaq'' on 11.8.1993.

She was not very much interested in the validity of the said ''talaq'' at present. She was interested only in her children. Her husband is a wholesale

dealer in shoes and having a lucarative business and is always on tour. He is having affairs with many ladies. He is a drunkard. Because he is

supporting the other members of his family, nobody in his family has courage to stand before him or correct him. He is not in a position to lok after

the children. His intention is that she must suffer for ever without husband and chidlren. Therefore, she gave a complaint to the second respondent

on 8.2.1994. When the enquiry was being held, the first respondent sent a telegram through his advocate questioning the enquiry. On receipt of

telegram, the authorities directed the petitioner to approach the Court for redressal of her grievance. The petitioner has no efficacious expeditious

alternative remedy except to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The children are very young and

they are longing for their mother. Under Islamic Shariat Law, the petitioner is entitled to custody of minor child upto seven years. A certificate

dated 4.2.1994 issued by the Chief Kazi for the Government of Tamil Nadu and another certificate dated 17.1.1994 by Kazi at Bangalore are to

that effect. As the children are forcibly snatched from the petitioner, she is entitled to have custody upto 7 years of age. They are in the illegal

custody of her husband. In the circumstances, she has prayed for issues for writ of habeas corpus.

The writ petition was presented on 10.2.1994. The first respondent filed a counter affidavit in which he denied the all allegations contained in the

petitioner''s affidavit. He has stated as follows in the counter affidavit. The petitioner left the matrimonial house on 10.8.1993 taking away the gold

jewels given to her. On account of irretrievable break down of the marriage, he had no option except to pronounce irrevocable ""talaq"" on

11.8.1993 in the presence of two competent witnesses and communicate the same to the petitioner as she, out of her own accord and willingness

without informing him, left the house on 10.8.1993 even without caring for the welfare of the children. She left the children in his custody only for

the reason that both the children are very much attached to him and he had been looking after them affectionately attending to all their needs

including bathing and dressing. His mother is also affectionately looking after the children as the petitioner never cared for her children. Even the

second child who is aged about 2, never used to be taken care of by the petitioner. The petitioner''s brothers are also doing business in footwear.

There is business rivalry between them and the first respondent. The petitioner used to support her brothers and brother-in-law to the detriment of

the interest of her husband. She was more interested in their welfare than caring for the interest of her husband. In order to safeguard the interests

of the children, the first respondent had to take the extreme step of divorcing her. She left the house only to give mental agency and torture to him

when he started a branch of his business at Madurai. She has filed the petition when he has started another branch at Madras. In order to bring

about amity in the house-hold, the first respondent set up a seperate family for his mother at Tambaram in the month of January 1992 and it caused

expenditure for him for maintaining two families one for himself and another for his mother. It was refelcted in his children developing hatred

towards the petitioner and increasing affection towards himself and his mother. The rule in Muslim Law that upto the age of 7 the children must

begin the custody of the mother is not without any exception and in the present case, the petitioner did not show any interest or affection towards

the children and she left them on 10.8.1992 and did not care to enquire about them. Being the father of the children, he is interested in their welfare

and well-being, not only at present but in future also and as such the children are attached towards him more than the petitioner. The petitioner

ought to have moved a competent Court viz., Family Court, so that the question of the welfare of the children would be gone into by examination

and cross-examination of the parties concerned. The right to custody is a claim to be urged in Civil Court and it cannot be gone into in a criminal

proceeding, much less writ proceedings and the primary consideration for having the custody of the children even as per the personal law is the

minor''s welfare. The welfare of the children in the present case is only to allow the children to be in the custody of the first respondent. He would

look after the children properly by giving them proper education at any cost and he can aford to do so much better than the petitioner as she has to

depend upon others for each and every thing with regard to the welfare of the children. His custody of the children is not illegal and no writ can be

issued. He has filed a writ petition for issue of a mandamus as against the second respondent as well as she petitioner fur direction that the second

respondent shall not forcibly remove the custody of the children from him at the instance of the petitioner. Before the writ petition was posted for

orders, the petitioner has filed the present writ petition on 10.2.1994. The first respondent has also obtained Fathwa from the Judge of a Sheriath

Court of Bangalore that in case the mother is not showing interest in brining up the minor children, custody of the minor children shall be with the

father in preference to the mother. The decided cases of High Court as well as Supreme Court would clearly indicate and point out that the welfare

of the minor children is paramount and if the mother does not shows that the custody of the minor children with the father is deterimental to the

interest of the minor children, she has no right to cliam the custody from the father, as she has left with him the children when she left the house.

Hence, the first respondent prays for dismissal of the petition.

The matter was heard at some length on 7.3.1994. Certain queries were put by the Court to counsel appearing for the petitioner. He prayed for

an adjournment in order to give a satisfactory answer to the Court and the mutter was adjourned to 21.3.1994. When the matter again came

before Court on 21.3.1994, the counsel on record was changed and a Senior Counsel appeared for the petitioner. An Additional affidavit was

filed by the petitioner along with a typed set of papers.

In the additional affidavit it is stated that on 11.1.1994 after the first respondent drove the petitioner out of his house, the petitioner gave a

complaint against the first respondent to the Treasurer of Edgah Mosque K.M. Haji Abdul Jaleel, Abdul Bari, Retired Deputy Collector, Haji

Mohamed Hussian, Propreitor, Star Paper Mart, Haji Mohamed Yaesa, Propriator, Three Star Chappals, they being elders of the community.

They sat as Panchayatdars and called the first respondent. They held a panchayat on 12.1.1994 and 7.2.1994 in the evenings at No. 5, Stringer

Street, Madras-108. On 12.1.1994 the Panchayatdars advised the first respondent to live amicably with the petitioners, but the first respondent

declined to take the petitioner back. On the other hand, he agreed to return the two children to her custody. With all the good intentions, the

Panchatyatdars advised the first respondent to think calmly and take decision to live with the petitioner and they gave him two more weeks for the

same. In the meanwhile, on 22.1.1994 the petitioner received a postal envelope by Certificate of Posting containing two letter, viz., (1) xexox copy

of the ''Talaq'' letter dated 8.11.1993 and (2) xerox copy of a covering letter by an alleged Khazi. On 24.1.1994, she showed these xerox copies

to the said Panchayatdars and pleaded with them to take steps to get the custody of the children for her. In the meanwhile, on 25.1.1994 she

received one envelope by registered post which contained the originals of the letters already received by her under Certificate of Posting. On

7.2.1994 the Panchayatdars convened a meeting to get back the custody of the children, but the first respondent went back on his promise and

bluntly refused to return the children to her. Hence, the Panchayatdars informed her as to what happened in the Panchayat and as such advised her

to take necessary legal steps to get custody of her children. Then she gave a complaint to the police on 8.2.1994 and filed this writ petition on

10.2.1994. She has stated that she is a pious Muslim woman and an ''Aalim''. She was always diligent in discharging her duties towards

her*husband and children. She has taken utmost care to her children and showered all motherly affection on them. Her elder son Mohamed

Udumen was attending Mieasi Higher Secondary School, Angappa Naicken Street, Madras 1. But, with an ulterior motive, the first respondent in

December 1993 suddently put him in a school, at Tambaram, disrupting the education inspite of the petitioner''s objection. Even then the

petitioner''s son continued to stay with her most of the time at No. 15 Hazarath Sahib Street, Maskanchavadi and he heardly attended school for a

few days. The first respondent is leading an immoral life-and the innumerable letters written by his girl friends to him would show that he had been

having love affiars. Copies of the letters are filed in the additional typed set of papers. He travels frequently to attend to his business at Madurai

and he has no time to attend to the needs of the children since his business and immoral activates heep him occupied most of the time. It is also

learnt that he is planning to get married again. The welfare of the children is the prime consideration and the facts will show that he is not a fit

person to look after the children. The petitioner has got moral and material supports from all her seven brothers and her parents. She can bring up

her two sons in a very healthy atmosphere by giving them good education and build up their future. She prays for the ordering of the petition.

The first respondent filed a reply affidavit in answer to the additional affidavit filed by the petitioner along with a typed set of papers. In his reply

affidavit he has denied the holding of panchayat by the persons mentioned by the petitioners. He has also stated that he had vacated the house in

No. 15, Hazarat Sahib Street, Maskhanchavadi, where the petitioner was living with him, on 15.9.1993. According to the first respondent, the

petitioner had left the house on 10.8.1993 and he had handed over possession of the said house to the owner thereof on 15.9.1993. He was not

living in the said house on 10.1.1994 when the petitioner is claimed to have been sent out of the house. The first respondent has also slated that he

got his first son admitted in the Wellington Matriculation School, Devaraja Pillai Street, Mudichur Road, West Thambaram, on 3.11.1993 itself.

He has filed a xerox copy of the certificate issued by the Headmistress of that school in support of his statement. As regards the alleged

Panchayatdars, it is the case of the first respondent that they are all business rivals and they are closely connected with the petitioner''s brothers.

According to him, no Panchayat was held as alleged by the petitioner. It is further stated that Haji K.M. Abdul Jaleel has made use of a letter-pad

of Edgah Mosque Charities, without the knowledge of the concerned authorities with a male fide intention to mislead this court. It is not necessary

to repeat what he has stated with regard to the other three Panchayatdars. Suffice it to say that his version is that each of the alleged Panchayatdars

is motivated and was out to bring down his honour. He has also stated that he was not in Madras on 12.1.1994, the alleged date of first Panchayat

and that he did not meet the alleged Panchayatdars on 7.2.1994 at any time. Regarding the bunch of letters produced by the petitioner, he has

stated that no doubt that those letters were written to him, but they were all written to him, but they were all written by his pen-pals as it could be

seen from a reading of the letters themselves. There is no reference in those letters whosoever with regard to his had charcter. Authors of most of

the letters were only friendly and they were also giving advice to him and seeking his advice as and when necessary. The petitioners is living in her

parental house with her seven brothers and the altitude, character and aptitude of her brothers and their wives would not provide a congenial

atmosphere for the welfare of his children. The children are very happy with the first respondent and they are maintaining good health even after the

petitioner deserted them on 10.8.1993. In fact, the petitioner herself wanted on several occasions to liberate her from the wedlock by

pronouncement of irrevocable ''talaq'' falsely alleging that he was having some incurable disease.

We have heard counsel on both sides at length. The main argument advanced by the petitioner is that the petitioner is having a legal right to have

custody of the two children under the Muslim law. It is stated that unless she is shown to be disqualified in any manner to have the custody, the

petition shall be granted in her favour. It is also argued that the burden is on the first respondent to show that the petitioner is not in any way eligible

to have the custody of the children.

The position in law has been well settled by several pronouncements by the Supreme Court. Suffice it to refer to one of them viz., Dr. (Mrs.)

Veena Kapoor Vs. Shri Varinder Kumar Kapoor, The court said:

It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal

right of this or that particular party.

Thus, the Supreme Court has pointed out that it is not the legal right that should weigh with the Court, but it is the welfare of the children which is

the paramount consideration to be taken into account by the Court. On the factor of the case it is seen that the child was aged 11/2 years. The

dispute was between the husband and wife, being the parents of the child. In spite of the fact that the child was of tender age of 11/2 years, the

Court directed evidence to be recorded to find out whether the welfare of the child required it to be with the mother or the father. The parties in

that case were Hindus and under the Hindu Law also, the custody of the child upto the age of 5 has to be with the mother. But, yet the Court

directed recording of evidence to find out the welfare of the child.

Hence, we cannot accept the contention that because the petitioner is having a legal right to custody of the children, she should be granted the

relief prayed for by her in this petition. We are of the view that the normal remedy of the person who wants to get custody of his or her child is only

under the Guardian and Wards Act. The provision under Article 226 of the Constitution of India is an exceptional remedy and it should be invoked

only in extraordinary case. The extra-ordinary jurisdiction of this Court cannot be resorted to by all persons at all times. The question has been

considered by a Division Bench of the Madhya Pradesh High Court in Smt. Veena Agrawal Vs. Shri Prahlad Das Agarwal, . The Bench said:

The ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardian and Warda Act, as the case may be, and it is only in

exceptional cases that the rights of the parties to the custody of the minor shall be determined on a petition for habeas corpus, which is an

extraordinary remedy.

We have considered this aspect of the matter in Kamakshi v. A. Radhakrishnan and others (H.C.P. No. 2265 of 1993 - Order dated

17.2.1994) 1994 1 L.W Cri 343. We have referred to the principle laid down by the Division Bench of the Madhya Pradesh High Court and

accepted the same as stating the correct position in law. We have also referred to the Judgment of the Supreme Court earlier cited.

Applying those principles to the present case, we find that the crucial facts are in dispute. While according to the petitioner she was driven out

of the house onlO.1.1994 the first respondent''s case is that she left the house voluntarily on 10.8.1993. It is not a matter which can be decided on

the basis of the affidavits of these two parties. It has to be considered only after the parties are allowed to let in evidence on both sides. If really the

petitioner had left the house voluntarilly on 10.8.1993, then she will not be entitled to get custody of the children in these proceedings under Article

226 of the Constitution of India. In that event, she will have to explain as to why she did not come to Court for nearly six months after she left the

house. If on the other hand, she was driven out of the house on 10.1.1994, even then her conduct after she was so driven out of the house has to

be considered in the present case. In her affidavit filed in the first instance along with the writ petition, she vaguely alleged that attempts were made

by elders, well-wishers and community leaders to bring the couple together. But, she did not choose to give details about the so called attempts

made by them, there is absolutely no reference whatever in that affidavit to the alleged Panchayat held on 12.1.1994 and 7.2.1994. It must be

remembered that she gave a police complaint on 8.2.1994, a copy of which is produced by her and included in the typed set of papers. That does

not also make any reference to the alleged panchayat by any member of the community or leaders, elders and well-wishers and the holding of the

panchayats on 12.1.1994 and 7.2.1994. If really a panchayat had taken place on 12.1.1994 and 7.2.1994, that would have been certainly

mentioned in the affidavit filed along with the writ petition which was filed within a few days thereafter. There is no explanation on the part of the

petitioner for not mentioning the same in the affidavit filed in the first instance along with the writ petition. That will show that this story has been put

up only after change of counsel in March 1994 when the case remained part heard.

The petitioner has produced along with her additional affidavit a document purporting to have been issued by the alleged Panchayatdars. It

bears the date 15.3.1994. It reads as if a panchayat was held on 12.1.1994 on which date the first respondent agreed to give the children to the

petitioner. But, the panchayatdars advised him to consider whether he can take back the petitioner. According to the document, a second

Panchayat meeting was held on 7.2.1994, on which date the first respondent refused to hand over the children. On the face of the document, it

looks suspicious and the contents thereof creat a doubt in our mind. Admittedly it was not a document contemporaneous to the alleged events. It is

prepared only when the case was part heard and adjourned for further hearing. In such circumstances, we have doubt whether the petitioner had

disclosed all the facts to the Court in her application, particularly when she has failed to make a reference even to the names of the alleged

Panchayatdars and the panchayats alleged to have been held on 12.1.1994 and 7.2.1994 in the affidavit filed in support of the petition. We are of

the view that the petitioner has not taken the court into confidence and placed all the facts before it. In such circumstances, the petitioner will not be

entitled to get any relief under the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

No doubt, number of letters are produced by the petitioner which have been admittedly written to the first respondent by other ladies. But, a

perusal of the letters by themselves would not show that the petitioner is a man of bad character. An opportunity must be given to the persons who

have written those letters to explain the circumstances under which such letters were written by them to the first respondent and an opportunity

must be given to the first respondent to explain as to how these letters came to be written to him. It is not enough that he is allowed to file an

affidavit in this matter; but he must be examined and cross-examined on this asepct of the matter.

We are convinced that without a full-fledged enquiry in this matter, it is not possible for any court to decide whether the welfare of the children

is to be with the petitioner or to be with the first respondent. Such a full-fledged enquiry cannot be conducted in this petition under Article 226 of

the Constitution of India. It is a matter which has to be decided only in a proceeding under the Guardian and Wards Act and by the appropriate

Court concerned. There is no justification whatever for making an exception in this case and entertaining this petition and passing orders with

regard to the custody of the children.

We are of the view that the remedy of the petitioner is only to approach the appropriate court under the Guardian and Wards Act, and seek

the remedies. It is also open to her to apply for interim orders and get the same if she convinces the concerned court. Any observation made by us

in this order should not be understood as giving any finding against the petitioner or the first respondent. If any proceeding is filed in the appropriate

Court under the Guardian and Wards Act, it is for that Court to consider on the materials placed before it and decide as to what is the welfare of

the two minor children. On that basis, that Court shall pass appropriate orders. If and when any proceeding is filed, the Court shall dispose of the

same as expeditiously as possible, any, within a period of three months.

With the above directions, this petition is dismissed. No costs.