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Judgment
T.S. Doabia, J.—Having failed to persuade, respondent No. 5 to join him along with the minor daughter, the petitioner has sought a writ of
Habeas Corpus"" and ""Subjiciendum"". The respondent No. 5 however, submits that these proceedings lack sincerely and have been resorted to
with an oblique motive; the motive being to exert undue pressure. It is accordingly submitted that the petition having not been initiated bona fide
deserves rejection at the very threshold. A second petition bearing No. 695 of 1997 has been filed on behalf of the minor. She wants conferment
of citizenship of this country. Reference to that would be made at appropriate place. Both these petitions concern the minor and are being dealt
with together.
Facts in HCW 846 of 1997 are as under :
The petitioner is admittedly the father of a minor child. She was born out of a wedlock between the petitioner and respondent No. 5. The
marriage took place in Delhi. This happened in 1984. The petitioner is a Pakistan national. The respondent No. 5 was and is still an Indian
National. She has however, been going abroad on the basis of Indian Passport. After the marriage, the couple left for Dubai i.e. United Arab
Emirates. The minor whose custody is sought by the petitioner in this writ of Habeas Corpus was born in Dubai. She was born on 17-8-1985. She
is as such less than 13 years of age. This fact is sought to be evidence by placing reliance on a birth certificate. This is dated 29-8-1985. The
further fact is that in the year 1994, the petitioner along with his wife and minor daughter came to India. They had a valid visa. This visa was valid
for a period of 30 days. In terms of the visa, the petitioner submits that his minor daughter could remain in Delhi only. The petitioner left for Dubai
after short slay in Delhi for a period of two days. Thereafter, the respondent No. 5 and the minor daughter who have continued to stay in India
shifted their place of abode to this State.
It is the further case of the petitioner that he has been gelling the visa extended from lime to time. He has also been sending money for the proper
maintenance of respondent No. 5 and also the daughter. Requisite averments have been made in para 10 of the writ petition. As the respondent
No. 5 abandoned her intention to go back and as the daughter is in her custody, this has led the petitioner to file the present petition in this Court.
He is, as indicated above, seeking a writ of Habeas Corpus. According to him, he is entitled to the writ because the minor is in illegal detention.
With a view to project this aspect of the matter, it is argued that whenever the detention is illegal, a writ of Habeas Corpus can be issued.
According to the counsel, the detention is illegal because the minor could legally remain in Delhi in terms of the visa granted to her. The fact that
minor has been brought to the State of Jammu and Kashmir contrary to law has been highlighted to contend that this would render her stay in this
State illegal and the consequential stay with respondent No. 5 also illegal. It is this aspect of the matter which has been projected with a view to
contend that this is a case of illegal detention and this Court should issue a writ of Habeas Corpus. In any case it is stated that minor is under an
illegal restraint.
Independent of this, it has been argued that a writ of Habeas Corpus can always be issued whenever question of custody of minor is in issue. It
is further submitted that in these circumstances i.e. where the custody of the minor is involved, the Court is required to see and go into the question
of her welfare. For this reliance is being placed on the decision given by the Supreme Court of India in case reported as Mrs. Elizabeth Dinshaw v.
Arvind M. Dinshaw, : AIR 1987 SC 3.
Independently of this, it has been argued that under the general law as well personal law of the parties, the paramount consideration in these
matters to determine the welfare of the minor. According to the petitioner, the welfare lies in the fact that the custody of minor be given to the
petitioner.
The petitioner has also filed an additional affidavit in support of the assertion that the welfare of the child lies in restoring her custody to the
petitioner. This affidavit was filed in the Court on 6th, Feb., 1998 when the petition was taken up for hearing. In this affidavit, moral deliquency has
been attributed to respondent No. 5. It is accordingly contended that respondent No. 5 is not the proper person to keep the minor with her. To
sum up, the factual and legal submissions made by learned counsel for the petitioner are:--
(i) That the minor is in illegal detention;
(ii) The illegal detention is on account of the fact that the minor was brought to the State of Jammu and Kashmir contrary to the terms of the visa;
(iii) The minor was brought to this State without the consent of the petitioner;
(iv) That the welfare of the minor lies in restoring her custody to the father-petitioner.
According to the additional affidavit, as pointed out therein, the respondent No. 5 has rendered herself ineligible to continue to have custody of
the minor.
7, The learned counsel for the respondent submits that this is not a case where writ can be issued. Objections raised by him are as under :
(i) That the petitioner is not a citizen of India. According to him, a writ for the endorsement of fundamental rights tan be sought only by a citizen. He
submits that in effect what is sought to be enforced through this Court, is the right of freedom and liberty vis-a-vis the minor and as this subject falls
in Chapter III of the Constitution, a foreign national is not within his rights to maintain the petition;
(ii) Independent of the above it has been argued that the mother is the guardian under the Muslim Personal Law. For this reliance is placed upon
various authors on Muslim Personal Law;
(iii) The learned counsel for respondent No. 5 submits that additional affidavit cannot be permitted to be placed on record of writ petition No. 846
of 1997. According to him, if this was to be done, then leave of the Court should have been obtained. As the affidavit is not accompanied by any
application seeking permission, the affidavit should not be made part of the record.
(iv) Even if it be presumed that writ can be issued even then facts and circumstances do not warrant issuance of the writ; that in the above
eventuality the question of welfare of the minor has to be gone into. For this reliance is being placed on the very decision on which the learned
counsel for the petitioner has placed reliance. He also places reliance on the judgment of the Supreme Court reported as Dr. (Mrs.) Veena
Kapoor Vs. Shri Varinder Kumar Kapoor, . In the above case, directions were given by the Supreme Court to agitate upon the question as to
who is entitled to the custody in appropriate forums. As per the counsel, the question as to whether the petitioner is entitled to custody of the minor
or not, is a matter which would require appreciation of evidence and for this writ forum is not a proper forum.
(v) A distinction is sought to be pointed out between illegal detention and a person residing contrary to permission at a particular place. It is
submitted that this is not a case of illegal detention. As per the counsel appearing for respondent No. 5., the minor is studying in a school. She is
attending to her classes. This she is attending of her own free volition.
(vi) So far as the question of visa is concerned, as per the counsel, the requisite permission has since been obtained and the visa stands extended.
(vii) A distinction has also been made between a writ of Habeas Carpus contemplated by Article 226 of the Constitution and the orders which the
Court passes u/s 491 of the Cr. P.C. as applicable to the State of Jammu and Kashmir. According to the counsel, writ would not lie against a
private person. The appropriate forum for seeking custody is either to seek a warrant u/s 100 of the Cr. P.C. or take resort to Section 491 of the
Cr. P.C.
(viii) It is also contended that the proper procedure was to approach under the Guardian and Wards Act, as applicable to the State of Jammu and
Kashmir.
(ix) It is also suggested that an application for conferment of Indian citizenship on the minor is pending with the authorities and therefore, the
question of the minor being detained in illegal custody does not arise. It is suggested that as under the Muslim Personal Law the mother is the
natural guardian of a female minor below fifteen years of age, the nationality and consequential question of citizenship of the minor is irrelevant. The
citizenship of the minor would be the same as that of the mother. According to the counsel if the application which is pending consideration is
disallowed, the law would take its own course.
7A. So far as writ petition OWP No. 695 of 1997 is concerned, this has been filed by the minor through her mother. In this, a prayer has been
made that the claim petition filed by. the minor in terms of Section 5 of the Constitution Act of 1955 be disposed of at an early date and the
respondent-authorities be restrained from deporting the minor from her present place of residence to any other place. In this petition, an application
was preferred by the writ petitioner of writ petition No. 846 of 1997. He wanted to be arrayed as respondent. That application was allowed.
Liberty was granted to the other side to file objections. Objections have since been filed. The added respondent submits that either he should be
heard by this Court or a direction be given that when the application vis-a-vis conferring of Citizenship of India on the minor is considered, when
he should be afforded an opportunity of hearing. This is being opposed by the counsel for the petitioner. According to him, the objector has no
locus standi and in any case, no direction can be drawn by this Court in this regard. The questions which arise for determination in these petitions
are :
(i) whether a writ of Habeas Corpus can be . issued :
(a) at the instance of a person who is not a citizen of this country.
(b) to secure the custody of a minor female at the instance of father.
(c) when alternative remedy is available.
(ii) who can file a petition on behalf of a minor.
(iii) whether concept of welfare of the minor is a relevant consideration in these matters.
(iv) whether wishes of the minor are required to be gone into.
(v) whether Personal Law of Parties would prevail and the mother can continue to have the custody of minor.
7B. The question posed at serial No. (i) be examined.
The full name of the writ is ""Habeas Corpus"" ad ""Subjiciendum"". Habeas Corpus means that you have the body. Habeas Corpus ad Subjiciendum
means ""that you have the body to submit or answer"". This is a prerogative process for securing the liberty of the subject by affording an effective
means of immediate release from unlawful detention whether in State or in private custody. By it, the Court commands the production of the
subject and enquiries into the cause of his detention. If there is no legal justification for the detention the party is ordered to be released. The writ is
applicable as a remedy in all cases of wrongful deprivation of personal liberty. The principal aim of the writ is to provide for a swift judicial review
of alleged unlawful restraint on liberty of a subject: The proposition that the writ is available as a remedy in all cases of wrongful deprivation of
personal liberty, has however, been criticised by Viscount Maugham as being inaccurate. In Greene V. Home Secretary (1941) 3 All ER 38 he
observed :
It is inaccurate to say, as some have said that the writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty. What the
Judges of the High Court can do, at the instance of the imprisoned person, is to command the production of the person and to enquire into the
cause of his imprisonment. If there is no legal justification for the detention the party is ordered to be released. However, there are many case, and
in particular those of a criminal or supposed criminal, character, in which a return to the writ (to use the old fashioned phrase cannot be traversed
or impeached by affidavit.
However, in Cox v. Hakes (1990) 15 Comp Cas 506 Lord Halsbury made the following memorable observations:
For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of
the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the
consequence was immediate release from custody.
The importance of personal liberty, the vigilance with which it must be protected and the care which must be taken to see that a person is not
deprived of his liberty except by due process of law, are not in any way less because the person whose liberty is in question is not meritorious and
has not the sympathy of the Court. In this connection, the following observations of Scrutton, L.J. in R v. Secretary of State for Home Affairs;
Exparte O'Brien (1923) 2 KB 361 be quoted:
The law of this country has been very jealous of any infringement of personal liberty. This case is not to be exercised less vigilantly, because the
subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with
which you have no sympathy at all.
As early as 1627, in Darnel's case (1927) 3 STC Justice Hyde asserted the power of the Court in the following memorable observation:
Whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it, and
if it appears that: any man hath injury or wrong by his imprisonment we have power to deliver and discharge him, if otherwise, he is to be
remanded by us to prison.
Illegal detention is foundation of Court's jurisdiction, where at the time of the application there is no illegal detention, writ will not issue. Lord
Watson in Barnado V. Ford 1892 App Cas 326 observed as under :--
The remedy of habeas corpus is, in my opinion intended to facilitate the release of persons actually detained in lawful custody : and was not meant
to afford the means of inflicting penalties upon those persons by them they were at some time or other illegally detained. Accordingly, the writ
invariably sets forth that the individual whose release is sought, whether audit or infant, is taken and detained in the custody of the person to whom
it is addressed and rightly so because it is the fact of detention and nothing else, which gives the Court its jurisdiction.
The nature of the writ is described in Halsbury Laws of England Vol. II Paragraph 1455 of Fourth Edition as under :--
The writ of habeas corpus ad subjiciendum unlike the other writs of habeas corpus is a prerogative writ, that is to say it is an extraordinary
remedy, which is issued upon cause shown in cases where the ordinary legal remedies arc inapplicable or inadequate"".
The writ is a writ of right and is granted ex debito justitiae. It is not, however, a writ of course. Both at common law and by statute the writ of
habeas corpus may be granted only upon ground for its issue being shown. The writ may not in general be refused merely because there exists an
alternative remedy by which the validity of the detention can be questioned.
The fact that writ can be sought for the custody of a minor by the parents is dealt with in paragraph 1469 of the above treatise as under :
A parent, guardian of other person who is legally entitled to the custody of a minor can regain that custody when wrongfully deprived of it by
means of the writ of habeas corpus. For the purpose of the issue of the writ, the unlawful detention of a minor from the person who is legally
entitled to his custody is regarded as equivalent to an unlawful imprisonment of the minor. In applying for the writ it is therefore, unnecessary to
allege that any restraint of force is being used towards the minor by the person in whose custody and control he is for the time being.
Where a parent has voluntarily parted with the custody of a minor by entrusting him to another person and that person has without the parent's
authority handed the minor to a third person, a writ of habeas corpus will be issued at the instance of the parent, even though the person to whom
the minor was entrusted alleges that he does not know where the minor is; for the parent is entitled to require a return to be made to the writ, so
that the facts may be fully investigated.
At paragraph 1476 it is further observed :
Any person is entitled to institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment
and any person who is legally entitled to the custody of another may apply for the writ in order to regain that custody. In any case where access is
denied to a person alleged to be unjustifiably detained, so that there are no instructions from the prisoner, the application may be made by any
relation or friends on an affidavit setting forth the reasons for its being made.
In cases where the custody of children is in dispute the proper party to make the application for the writ is normally the parent or guardian who
claims to be entitled to the custody, and it must be shown that the applicant prima facie possesses a legal right to the custody : See Re Harper
(1985) 2 LR 571.
In Corpus Juris Secundum, the subject is dealt with as under. The nature of the writ is described at page 459 of Vol.-39 1976 Ed :
The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated
time and place, with the day and cause of his cation and detention, to do, submit to, and receive whatsoever the Court or judge awarding the writ
shall consider in that behalf. The writ is the process of testing the authority of one who deprives another of his liberty and it is designed to give a
person whose liberty is restrained an immediate hearing to inquire into and determine the legality of the detention.
Issuance of with regard to the writ at the instance of the parents for the custody of minor following observations exists:
While the writ of habeas corpus was originally a writ on behalf of liberty from unjust imprisonment and illegally restraint and was not intended to
try rights to the custody of infants, it has generally been extended to and generally made use of it, controversies touching such custody. The use of
the writ in such cases is based on the ground that absence from legal custody is equivalent to illegal restraint."" [Page 912]
Habeas corpus is proper proceeding to secure the release of infants illegally restrained and it has been held that in the absence of statute habeas
corpus will lie only to release an infant from improper restraint.
[Page 914]
'The rights or interests to be considered in a habeas corpus proceeding involving the custody of a child, are those of the child, parent and those
who have for years discharged all the obligations of parents; but the paramount considerations are the welfare and interest of the child, and the
Court may consider the question of interest which the State, as parents patriae has to promote the child's best interest, particularly if the matter is
raised by the pleadings"".
[Page 922]
It has been held that the natural right of the parent is an important consideration and that, in the absence of special circumstances, the child should
be awarded to the parent as against more distant relatives or third persons. However, the legal right of the parent is secondary to the best interest
of the child, and such right will not be enforced where it is not advantageous to the child although it has also been held that in the absence of a
finding that the parent is unfit to have custody, the mere fact that it is not to the best interest of the child to be in his parents' custody is not
controlling.
[Page 924]
Ordinarily a parent who is a fit and proper person to have custody of the child and who has not for any reason forfeited the right to custody, may
be awarded custody notwithstanding the wishes or desires of the child. However, the Court may consider the wishes of child, where the child is
sufficiently mature in mind to form a judgment and other conditions being equal, the wishes of the child may well be the controlling consideration.
[Page 926]
The fact that the child has been well cared for over a long period and has become attached to the environment may warrant giving custody of the
child to the person who has to cared for it, even as against the parents; but the parent's right will not be denied unless the foster alliance was
protracted and acquiesced in a spirit of abandonment and a severance will be disadvantageous to the child. In determining the custody to the child,
the Court is not bound to respect the mother's possession of the child, where such possession was obtained by unlawful means.
[Page 926]
The judicial precedents do support that a writ of Habeas Corpus is available to the parents if a minor child who has been illegally detained.
Some English decision be noticed :
Lord Campbell in Queen v. Clarke 26 LJ QB 169 :1857 7 EL and BL observed that guardian for nurture has by law a right to the custody of the
child and may maintain an action of trespass against a stranger who takes the child. With reference to such child brought up on a writ of habeas
corpus, the learned Chief Justice said :
The Child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian and when it is delivered to him the
child is supposed to be set at liberty. He deprecates the contention that the capacity of the child to make a choice for itself should be tested by the
Judges and observes that the consequences which would follow from allowing such a choice would be most alarming. Nor is there room for doubt
that when the father is entitled to the custody of the child the proper mode of enforcing his right consist in a decree for its delivery. The order
usually made on a habeas corpus when the child is too young to elect its own custody is a direction that the child be delivered to its lawful
guardian.
In the King v. Greenhill (1836) 4 A&E 624 Coleridge, J. said :
A habeas corpus proceeds on the fact of an illegal restraint. When the writ if obeyed and the party brought up is capable of using a discretion, the
rule is simple viz the individual who has been under the restraint is declared at liberty and the Court will even direct that the party shall be attended
home by an officer to make the order effectual. But where the person is too young to have a choice we must refer to legal principles to see who is
entitled to the custody.
As early as 1886 Muttusami Ayyer and Bundt, JJ. in Reade v. Krishna 1986 9 Mad 391 held that there could be no doubt that a minor under
fourteen years of age has no will of his own and his detention by a person other than his natural guardian would be unlawful.
The same view was expressed by the Madras High Court in Ramiah Thevan Vs. Athmanatha Ayyar and Another, . In the above case a minor
was a girl of 13 years. The contest was with regard to her custody. This was between her husband who was the petitioner and her mother and
step-brother who were the respondents. It was alleged that the young girl was extremely self willed and under no circumstance would she over
think of be willing to return to her husband, the reason being that she feared ill-treatment being meted out to her. It was accordingly contended that
there was no detention. Upon the facts that transpired the learned Judges found that attitude of the girl was not genuine but was induced by her
mother and her step-brother. Nevertheless they considered what the effect of her declaration was and said :
If, however, this declaration of the wife that she was not willing to return to her husband were true, then we would have to p2 consider what the
duty of the Court is. Whilst it is quite unnecessary in our view of me circumstances, to consider that position, we must state that we consider that,
in the case of a girl of only 13 years of age, her consent or otherwise is quite immaterial what we would have to consider would be the welfare of
the minor wife and in doing so the fact that she prefers to reside elsewhere than with her husband, although had she been old enough to form a
good opinion, this would have been a very important circumstance for consideration, would not in our view be entitled to very much or any weight
at all.
A writ for habeas corpus can be maintained by the husband on behalf of his wife where the wife is under illegal detention and the circumstances
are such that she is not able to apply herself. But where the wife is not under any illegal detention but is absolutely free and has left the husband's
protection and custody, the husband is not entitled to apply for habeas corpus to recover custody of his wife, R. v. Leggat (1852) 118 All ER 295.
But the husband's right is a conjugal right to the society of his wife, which is quite different from the right of a guardian to the custody of a minor. In
Place v. Searle (3), Scrutton, L. J. observed as follows :
The old law has been altered to this extent, that the means of enforcing the right to consortium have been materially weakened. In the old cases
there are dicta to the effect that the husband has the dominion and property over the wife; but since the decision of R. v. Jackson whatever rights
the husband has he cannot enforce them by physical confinement, he cannot seize his wife when she attempts to leave the consortium and lock her
up. But there still remain means of enforcing the right of the husband and the right of the wife.
A wife owes the duty to her husband to reside and consort with him and any one who without justification procures, entices or persuades her
to violate her duty commits a wrong against the husband for which the husband is entitled to recovery damages, Place v. Searle (1932) 2 KB 497.
A wife is entitled to a writ of hebeas corpus against the husband if she is wrongfully restrained by him against her will or if he attempts to
enforce his conjugal rights by keeping her in confinement or forcibly detaining her in custody.
As a matter of fact the Supreme Court of India in Gohar Begam Vs. Suggi alias Nazma Begam and Others, : Gohar Begam Vs. Suggi alias
Nazma Begam and Others, has observed in categoric terms, Writ of Habeas Corpus is available in such matters. The following observations in
para 13 of the above decision are clincher on the issue :
It is further well established in England that in issuing a writ of habeas corpus a Court has power in the case of infants to direct its custody to be
placed with a certain person. In R.V. Greenhill (1936) 4 A&E 624 : III ER 927 said.
When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will
go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being
placed in the proper custody.
Section 491 is expressly concerned with directions of the nature of a habeas corpus. The English principles applicable to the issue of a writ of
habeas corpus, therefore, apply there. In fact the Court in our country have always exercised the power to direct u/s 491 in a fit case that the
custody of an infant be delivered to the applicant: See S. Rama Iyer Vs. K.V. Nataraja Iyer, ; Zarabibi Vs. Abdul Rezzak Nakshbandi, ; and
Subbuswami Goundan Vs. Kamakshi Ammal and Another, . If the Courts did not have this power the remedy u/s 491 would in the case of infants
often become infructuous.
'These observations made in the context of Section 491 of the Criminal P.C., 1998, apply with equal force in the exercise of the constitutional
jurisdiction conferred upon by this Court by Art. 226 of the Constitution.
A Division Bench of the Madhya Pradesh High Court reached same conclusion in the case reported as Mumtaz Begum Vs. Mubarak Hussain,
. Dr. T.N. Singh, J. speaking for the Bench made the legal position clear in his usual lucid manner.
However in our view, the contention stands emphatically negatived by what is stated by the Apex Court in Gohar Begam Vs. Suggi alias Nazma
Begam and Others, and in Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, reported respectively in Gohar Begam Vs. Suggi alias
Nazma Begam and Others, and Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, as in both cases the question was of custody of a
minor and the prayer for habeas corpus was not only entertained but finally allowed in one case. It has been authoritatively held in Gohar Begam
Vs. Suggi alias Nazma Begam and Others, , that existence of the right to relief under the Guardians and Wards Act could not be a ground to deny
the mother the custody of the child to which she was entitled under the Mohomedan Law. It was further observed that the basic features of the
English writ of Habeas Corpus still retain their prestine form and colour because the writ is in terms named in the Constitution though the qualifying
words of the nature of appearing in Arts. 32 and 226 are used deliberately indeed only to indicate that the relief may be suitably moulded by the
Court to suit the facts and circumstances of the case. Indeed the celebrated decision in the Barnardo case 1892 AC 326 concerning child's
custody, has received the approval of our Apex Court in Sebastian M. Hongray Vs. Union of India (UOI) and Others, . This apart, we must bear
in mind the distinction between the question of ""custody"" and ""guardianship"". In a petition for a writ of habeas corpus, this Court is not at all
concerned with the question of appointment of any guardian or of his rights and duties and the enforcement thereof though it is still concerned with
the question of ""welfare"" of the minor when this Court is petitioned for his or her custody. That is what we read in Dr. (Mrs.) Veena Kapoor Vs.
Shri Varinder Kumar Kapoor, , wherein the respondent's defence that his custody of the child not being illegal, relief had to be refused to the
petitioner was summarily rejected. It has also to be said that this Court acted under Article 32 of the Constitution and asked for a report from the
District Judge who was required to make an inquiry into the question of ""welfare"" of the minor because there was no material before this Court to
reach a positive and affirmative conclusion on the question for finally deciding the matter.
As a matter of fact in Mrs. Elizabeth Dinshow v. Arvand M. Dinshaw, : AIR 1987 SC 3, the Supreme Court of India did issue the writ even at
the instance of a person who was not a citizen of this country.
The concept of detention and restraint may also be adverted to at this stage.
When it was alleged that a certain woman was due to too much drink, in an unsound state of mind, that certain persons were having her too
much under their control and influence and that they were suspected to making an improper use of their influence for their own ends, a rule was
issued to show cause why an information should not be exhibited against them in regard to the misdemeanours charged against them in the
affidavits. A direction was added to the rule that certain named persons including a doctor and the relations of the alleged person of unsound mind
should have access to her at the house of one of the defendants at all proper times to freely advise and be consulted by her, as it was represented
that she was too infirm and weak to be brought into Court by Habeas Corpus R. Wright, (1760) 97 All ER 730.
Thus a writ of habeas corpus is applicable as a remedy in all cases of wrongful deprivation of personal liberty. It is an effective means of
immediate release from unlawful detention whether in prison or private custody. In this connection it may be noted that the actual physical
confinement is not necessary to constitute detention. Control and custody are enough. Proceedings by way of habeas corpus can be adopted for
obtaining custody of minors by their parents, legal guardians or others who are entitled to have such custody. This unlawful detention of a child
from the person who is legally entitled to his custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment
of the child, see Gohar's case. It is, there fore, unnecessary to allege in applying for the writ that any restraint or force is being used towards the
infant by the person in whose control and custody it is for the time being. In Wharton's Law Lexicon, 14th Edn. (1938) page 462, the following
passage occurs :
Besides the efficacy of the writ of habeas corpus in liberating the subject from illegal confinement in public prison, it also extends its influence to
remove every unlawful restraint of personal freedom in private life, availing for instance, to restore children to the lawful custody.
The words ""Detention"" and ""Restraint"" stands defined in Black's Law Dictionary, Sixth Edition at pages 450 and 1314 and these are to same
effect as noticed above.
The writ of habeas corpus is of a remedial nature (and not punitive) and not intended to be used for inflicting punishment on the person
responsible for the illegal detention; therefore, where the illegal detention has ceased, the writ cannot issue. Where, however, it is doubtful whether
the person charged with the unlawful detention has the custody or control, the Court will order the writ to issue in order that the question may be
ascertained on the return, Ex parte Child (1854) 139 All ER 413.
It is thus well established that a writ of Habeas Corpus can be issued to secure the custody of minor. This can be sought even by a person who
is not a citizen of this country. The objections raised by the respondent's counsel are therefore, rejected. Question posed at Sr. No. (i) is answered
accordingly.
Father's right to maintain the petition.
A writ of Habeas Corpus can be issued at the instance of the father for the production of minor in the Court. It is a general principle of English Law
as well as of Hindu Law that the father is entitled to the custody of his children and to the control of their education and upbringing unless there is
any special reason to deny him such right. See Mrs. Aynie Besant v. Naryan Singh, AIR 1914 PC 141 wherein it was said :
Whatever may be the jurisdiction of the High Court to declare infants to be Wards of Court an order declaring a guardian can only be made if
their interests require it.
In re Agar Ellis (1883) 24 Ch D 317 it was held that a father has a legal right to control and direct the education and bringing up of his children
until they attain the age of twenty-one years, even though they are wards of Courts and the Court will not interfere with him in the exercise of his
paternal authority except:
(i) where, by his gross moral turpitude he has forfeited his rights;
(ii) where he has by his conduct abdicated his paternal authority;
(iii) where he seeks to remove his children being wards of Court, out of the jurisdiction of the Court without the consent of the Court.
Thus father does possess a right to secure the custody of the minor. This is however, subject to some exceptions. These have been noticed
hereafter.
Minor's consent how far relevant :
One of the factors which can be considered in regard to custody of infants is the consent of the infant. Where an infant, who has passed tender
years and is of a reasonable age, is out of a parent's custody and desires to remain out of it, he will not be compelled to return to it, if his welfare
does not so require. Under English Law, a boy of 14 and a girl of 16 are presumed to be able to decide for themselves where they are to stay. In
re Agar Ellis (1883) 24 CHD 317. But up to the age of 14 in the case of boys and 16 in the case of girls, they are supposed to be incapable of
giving any consent to the custody of any person. Hence in habeas corpus applications, the age of the minor and the degree of his mental
development and the question whether the minor consents to be away from the guardians are important questions to be considered. If the minor is
of sufficient age and does not want to return to the control of the father or husband, the Court will not ordinarily compel such return. Therefore,
where an infant is brought before the Court by habeas corpus if he be of an age to exercise the choice, the Court leaves him to elect where he will
go. If he be not of that age and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being
placed in proper custody, R.V. Greenhill (1836) 4 AEl 624. In other words when a minor is not of sufficiently mature age to form an opinion, the
minor's wishes may be ignored and he may be restored to the custody of his legitimate guardian that is the parent or husband, though the minor
may not be willing to return to such custody.
In any proceeding before any Court concerning the custody or upbringing of an infant, the Court must regard the welfare of the infant as the first
and paramount consideration and must treat any rights, priorities or preferences of the parents or of either of them or of other persons, as
subordinate thereto. The comfort health and the moral intellectual and spiritual welfare of the infant are the true matters for consideration. These
observations are made in Mas Aynie Besant's case AIR 1914 PC 41 (supra):
As in this country so among the Hindus the father is the natural guardian of his children during their minorities, but this guardianship is in the nature
of a sacred trust and he cannot therefore, during his lifetime substitute another person to be a guardian in his place. He may it is true, in the exercise
of his discretion as guardian, entrust the custody and education of his children to another but the authority he thus confers is essentially a revocable
authority and if the welfare of his children requires it, he can, notwithstanding any contract to the contrary, take such custody and education once
more into his own hands. If however, the authority has been acted upon in such a way as in the opinion of the Court exercising the jurisdiction of
the Crown over infants, to create association or give rise to expectations on the part of the infants which it would be undesirable in their interests to
disturb or disappoint such Court will interfere to prevent its revocation.
In the above case, the plaintiff who was not very well off and who had two sons purported to appoint, by means of a letter, the defendant who
was well off, the guardian of his two sons and authorised her to act as such from that time onward. The object of the arrangement was that the
boys should be educated in England and at the University of Oxford. The arrangement was acted upon and the boys were being educated in
England at the expense of the defendant when the plaintiff claimed back the custody of the two boys. The plaintiff asked for a mandatory injunction
against the defendant directing her to deliver up the boys to the plaintiff. Their Lordships held that the suit was misconceived. They further laid
down the principle that the welfare of the boys was of paramount importance and also laid down the principle quoted above.
The primary object of habeas corpus as applied to infants, is to determine in whose custody the best interests of the infant will probably be
advanced. Buchanan v. Buchanan AIR SC 688 . The Courts in India have also been guided by these considerations in deciding child custody
cases. In Rosy Jacob Vs. Jacob A. Chakramakkal, , which was a case arising u/s 25 of the Guardians and Wards Act, 1890, the pertinent
observations made in this context being relevant are extracted hereinbelow :--
The Court's power....... is also, in our opinion to be governed primarily by the consideration of the welfare of the minors concerned. The
discretion vested in the Court is, as in the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and
circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this
respect being seldom if ever identical. The contention that if the husband is not unfit to be the guardian of his minor children then the question of
their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading..... In our opinion, the
dominant consideration in making orders u/s 25 is the welfare of the minor children and in considering this question, due regard has of course to be
paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare..... There is ho
dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father's
fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant
circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim
indefeasible right to their custody u/s 25 merely because there is no defect in his personal character and he has attachment for his children--which
every normal parent has - The father's fitness from the point of view just mentioned cannot override considerations of the welfare of the minor
children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children being normally the earning
member and head of the family but the Court has in each case to see primarily to the welfare of the children in determining the question of their
custody, in the background of all the relevant facts having a bearing on their health, maintenance and education....... Merely because the father
loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be
better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise
equally free from blemish, and who, in addition because of her profession and financial resources may be in a position to guarantee better health,
education and maintenance for them. The children are not mere chattels nor are they mere playthings for their parents. Absolute right of parents
over the destinies and the lives of their children has in the modern changed social conditions yielded to the considerations of their welfare as human
beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute
between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and
the rights of their respective parents over them.
In Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka, , the Supreme Court reiterated this view in the following words:--
The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has
to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the
Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In
considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.
It is, thus, clear that as between the competing claims of two parents in receipt of the custody of a minor child, the mere fact that the father is
not unfit to be the custodian is not determinative of the issue of its welfare. If the custody of the father cannot promote the welfare equally or better
than the custody of the mother, then he cannot claim indefeasible right to the child's custody. Indeed, the ""tender years rules"" requires that the
custody of the children of tender age must be left with the mother. The mother's protection for such children is indispensable. This aspect of the
matter was recognised in Gohar Begam Vs. Suggi alias Nazma Begam and Others, , where the custody was given to the mother. Similar is the
position in the case reported as Poonam Datta Vs. Krishanlal Datta and Others, . This was recognised by the Madhya Pradesh High Court in
Mumtaz Begum Vs. Mubarak Hussain, and again in Cri LJ 1983 in case reported as Savitaben Lagharbhai Vs. Manji Ramji Chavda and Another,
.
From the various decisions noted above it can safely be concluded :
(i) In any proceeding before any Court concerning the custody or upbringing of an infant, the Court must regard the welfare of the infant as the first
and paramount consideration and must treat any rights, priorities or preferences of the parents or of either of them or of other person as
subordinate thereto.
(ii) The comfort, health and the moral intellectual and spiritual welfare of the infant are the true matters for consideration.
(iii) Paramount consideration in such cases being welfare of minor and not rights of parties.
(iv) The true principle deducible from the authorities by which the Court should be guided in such cases, was that the Court is to judge upon the
circumstances of each particular case and that the welfare of the infant, irrespective of its age is the main factor to be regarded.
(v) The writ of Habeas Corpus can be pressed into service for granting the custody of a child to deserving spouse. Between the competing claims
of two parents in respect of the custody of a minor child, the mere fact that the father is not unfit to be the custodian, is not determinative of the
issue of the child's welfare. If the custody of the father cannot promote the welfare equally or better than the custody of the mother, then he cannot
claim indefeasible right to the child's custody.
(vi) Where a petition for a writ of habeas corpus was filed by mother for the custody of her child of about five years when he was taken away by
his father at the age of ten months and civil and criminal proceedings initiated in the meanwhile against the father were allowed to be dismissed and
there was no allegation in the petition that the child was not receiving proper education, the High Court could not grant the custody of the minor
child to his mother, at least in writ proceedings 1986 All LJ 742.
(vii) In a writ petition by the mother for custody of her minor children from father merely because the mother is a hawker selling vegetables, the
custody cannot be denied. It was not alleged that mother has no love for the children, hence if the mother is fully qualified and if children are not
safe at the house of the father, the custody must be entrusted to the mother. 1983 All LJ 598.
(viii) It is now well-known that the 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.
The personal law of the parties may now be examined.
Mulla"" Principles of Mahomedan Law, 18th Edition 1977 deals with aspect at page 367. It has been concluded that the mother is entitled to the
custody (hizanat) of her female child until she has attained puberty. The right continues till she remains. The difference between custody and
guardianship was explained by the Allahabad High Court in Khatija Begum v. Gulam Dastgir 1975 All WR 199. In Imambandi v. Mutsadi (1918)
45 JA 73 their Lordships of the Privy Council observed that under the Mahomedan Law the mother is entitled only to the custody of the person of
minor child. Some decisions from Pakistan are noted at page 368 by Mulla. These are as under :--
mere inability to maintain the children is not a ground for depriving the mother of the custody of her children, if she is not otherwise disqualified. If
the mother is of bad character she may be deprived of the custody of the child : Khushi Muhammad v. Muhammadunnissa 1961 PLD 786 Lah .
Father's petition dismissed as the boy was only 5 years old. Welfare of the minor considered in appeal when the boy had attained 7 years of age.
Abdul Jabbar v. Fazal Jan, PLD 1963 Lah 90. Mother's poverty is no hindrance to the custody of minor daughter : Harbai v. Usman, PLD 1963
Lah 888. If mother remarries after her husband's death, she may not lose right if no suitable person can be found : Ali Baksh v. Bhagul, PLD (WP)
Karachi 465. Where father was held to have abandoned the child, the maternal grandmother was held to be the best person to have custody of the
minor. Akhtar Ahmad v. Hazoor Begum PLD 1965 Lah 65.
Mother was held entitled to the custody of her female, child until she attained puberty. See Hasan Bhat v. G.M. Bhat AIR 1961 J&K 5 where
mother's custody was held to be conducive to child's welfare. Following observations were made:
The welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. We are fortified in our
view by Division Bench decisions of several High Courts. To begin with there is a Division Bench authority of Patna High Court, Bhola Nath Vs.
Sharda Devi, , wherein their Lordships replying on a number of authorities held that the paramount consideration in appointing a guardian is the
question of the welfare of the minor. To the same effect are the decisions reported in Samuel Stephen Richard Vs. Stella Richard, , Mohammad
Saddiq v. Wafati, AIR 1948 Oudh 51 as also Ram Prasad v. Dist. Judge, Gorakhpur 57 Ind Cas 651 : AIR 1920 All 89.
We have also ourselves held in an unreported case, Civil 1st Misc. Appeal No. 55 of 1959, Bilu Ram v. Nanak Chand on 15-2-1960 (J and K)
that the paramount consideration in appointing a guardian of the minor should be the welfare of the minor and where a Court finds that the interests
of the minor cannot be looked after properly by a person being a preferential guardian under the personal law, he cannot be appointed a guardian
under the Guardians and Wards Act.
Reference may again be made to the decision of Madhya Pradesh High Court in AIR 1986 MP 22 where the custody of the minor female
child was given to the mother with following observation :--
Evidently, the short question for our consideration in this case is whether the petitioner should be deemed to have lost her right to the custody of
the child merely because she is not residing with her husband, the father of the child. In his annotation, on para 354 Mulla has referred to judicial
exposition of the rules obtaining in Pakistan, as regards mother's disqualification.
xxxxxxxxxxxxx
The learned commentator has quoted Rizivi, J. who, in Bavi v. Shah Nawaz Khan PLD Lahore 509 observed:
The principle of Muhammadan Law as regards hizanat is fundamentally based on this fact that it is, for the welfare of the minors to live with their
guardians as directed under the law.
Following the judicial dicta in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, buttressed in Ms Jorden Diengdeh Vs. S.S. Chopra, , we
are bound to construe teleologically and humanistically sub-para (2) of para 354 abovereferred.""xxxxxxxxx x
In our view the mother of the child shall not suffer disqualification to have custody of the child for the mere fact that she is not residing with her
husband, the child's father.""xxxxxxxx
When personal laws are divinely sanctioned a presumption will naturally arise that such laws have a humanistic content, because when great seers,
saints and prophets found any faith, they act as benefactors of the mankind as a whole, if man is God's child and if child is the father of the man, no
personal law claiming divine sanction can afford to deny paramount consideration to the welfare of the child.
The facts of this case may again be examined.
The petitioner states that he has all affection for the minor. As per the affidavit filed, he has attributed moral delinquency to the respondent No. 5.
The allegations made in the affidavit do not have a remote mention in the main petition. He asserts that a sum of Rs. 20,000/- was sent to the
respondent No. 5 and the minor in 1994. For three years no further step was taken with a view to discharge any other parental obligation to-
wards the minor. The only steps taken are renewal of visa. This was also abandoned later on.
There are counter-allegations made by respondent No. 5 in the petition filed on behalf of the minor claim in Citizenship. The minor when she
came to India was about nine years of age. She has been for all these years in the continuous company of her mother. The impressionable years,
she has spent with her mother and her maternal relations. She has got used to certain social environment which may not be available to her in
Dubai. An offer was made in Court. This was to the effect that wishes of the minor can be ascertained by her production in this Court. The counsel
for the petitioner was of the view that this exercise would be of no avail as the minor coming from mother's custody is likely to show her affection
and preference for staying with the mother. The petitioner was also present in Court. He made no comment and accepted what was said by his
counsel. The minor is studying, under the care of the mother. If taken to Dubai what her reaction would be, is difficult to foresee but any attempt to
put her away from the mother's company would definitely upset her at this stage. As stated above only financial obligation which was discharged
by the petitioner was three years back. Thereafter a conflict typical of estranged married couple ensued. Publication in newspaper was also
resorted to. The relations between the petitioner and respondent No. 5 haw reached flash point. The respondent No. 5 has taken a stand that she
is no longer bound by the nuptial knot as she was divorced by the petitioner. This is, of course, disputed. The respondent No. 5 has justification to
contend that this petition is a mere pressure tactic. It may be so but nothing can be said with certainty as this is a disputed question of fact. The
allegations made in the affidavit filed on 6-2-1998 can also be not looked into. This again falls in the realm of disputed facts. These can be agitated
in Civil Courts by initiating appropriate proceedings under Personal Law or any other statute available to the petitioner. The affidavit accompanied
by sealed cover shall be returned to the petitioner. This is not being made part of the record. If this is not claimed by the petitioner, this shall be
destroyed in the presence of Registrar Judicial of this Court after sixty days. This sealed cover shall further be put in a sealed cover and kept in
safe custody.
So far as the question of custody is concerned I am of the view that no case has been made out for entrusting the custody of the minor to the
petitioner. It is likely to disturb her emotionally. The Personal Law of the parties permit the mother to keep custody of female minor till the age of
fifteen years.
It is hoped that parties would not wash the proverbial ""dirty linen"" in public at least, for the proper development of the minor.
This petition is found to be Without merit and is dismissed leaving the petitioner to seek remedies in other forums available to him.
Coming to the facts of OWP No. 695 of 1997.
The petitioner seeks citizenship of this country. She is minor. She has filed this petition through her mother. This petition is being opposed more by
her father than by State. As per petitioner stay of minor though irregular into origin has been regularised till the month of November of this year.
The question as to whether the petitioner is entitled to citizenship of this country because her mother is an Indian National and can keep her
with her up to the age of fifteen years is a question which is to be ultimately decided by the respondents. As to whether any party is entitled to
hearing and more so added respondent is a subject on which nothing is being said. Nor can any other direction be given. A direction can also be
not be given to not to take any action against the petitioner till the question of conferment of citizenship is decided.
This petition is disposed of with a hope that the authorities would not ignore the concept of welfare of the minor and more so what has been
said in the declaration of the rights of the child adopted by the General Assembly of the United Nations on 20th November, 1959. The relevant
paras are as under :
The child shall enjoy special protection and shall be given opportunities and facilities by law and by other means, to enable him to develop
physically, mentally morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of
laws for this purpose the best interests of the child shall be the paramount consideration.
'The child for the full and harmonious development of his personality, needs love and understanding. He shall wherever possible grow up in the
care and under the responsibility of his parents and in any case in an atmosphere of affection and of moral and material security a child of tender
years shall not save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend
particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the
maintenance of children of large families is desirable.
The observations made by the Supreme Court of India in case reported as Lakshmi Kant Pandey Vs. Union of India (UOI), , though in
somewhat different context are noted below :
Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is
possible only if the child is brought up in a family. The most congenial environment would, of course be that of the family of his biological parents.
On the facts and circumstances of the case, no writ can be issued to not to deal with the minor till her application is not decided by the
competent authority. This is purely administrative matter. As to what procedure is to be followed is again left to the discretion of respondent's
authorities.
Both the petitions accordingly are dismissed with no order as to the costs.