Master Mehdi Hasan vs State of U.P. and Others

G.S.N. Tripathi, J.—This is a petition under Article 226 of the Constitution of India, seeking a writ of Habeas Corpus direction, Respondent No. 3 to produce toe child Master Mehdi Hasan s/o Haroon Khan, r/o Village Charnan Nagariya. P. S. Nawabganj, Distt. Bareilly, through his mother Smt. Nafisa Begum wife of late Haroon Khan.

Admitted facts are these : Master Mehdi Khan was born through the union of late Haroon Khan with Smt. Nafisa Begum. Haroon Khan died in an accident. Thereafter Smt. Nafisa Begum married with the brother of her late husband and this marriage continues.

Master Mehdi Hasan is, admittedly, in the physical custody of Bhurey Khan and his wife, who are the real maternal grandfather and grandmother of the child. The child has been brought from the custody of Bhurey Khan and his wife and is present in the Court.

The child does not wish to go to his mother although she tried to catch hold of him. The child started crying. The Court ordered Smt. Nafisa to release the child to go anywhere he likes. Smt. Nafisa, after great resistance, released the child. The child ran into the custody of his maternal grandmother and grandfather.

The legal position is not disputed that the mother is a better guardian than maternal grandmother and grandfather. But this consideration changes the moment the mother remarried with the brother of his late husband. That is the thing which has happened in this case. This is prime importance in this case. Another important question in this case is as to who is the best custodian of the child in his Interest. I think, after the mother has remarried, the custody of the maternal grandmother and grandfather will be certainly better than that of the mother Smt. Nafisa Begum. In the interest of the child''s welfare, etc., I find that the custody of the child with the maternal grandmother and grandfather will be better than that of Smt. Nafisa Begum.

In this connection, the Petitioner has already moved an application under the Guardian and Wards Act before the District Judge concerned. That Court will certainly decide the matter according to the legal position. But so far this Court is concerned, I find that the better custodian of the child will be the maternal grandmother and grandfather. They are entitled to keep this child into their custody.

The petition is dismissed. The child is allowed to go with Respondent No. 3. Bhoorey Khan and his wife, and shall remain with them so long he attains puberty. Thereafter, he will have an option to go anywhere he likes. That will be subject to the final order passed by the District Judge, Bareilly on a petition under the Guardian and Wards Act.