Allahabad High Court
Zahirul Hassan vs State Of Uttar Pradesh on 5 June, 1987
Equivalent citations: 1988CRILJ230
ORDER R.R. Misra, J.
1. Out of the wedlock of Zahirul Hasan and Smt. Hasin Bano, a son was born. In January, 1987 the father forcibly took the child aged I'/a years from the custody of the mother. The mother, therefore, moved an application under Section 97 of Cr. P. C. against the father. It is admitted case of the parties that relationship of husband and wife still subsists. During pendency of the said application before the Additional District Magistrate (City), Kanpur Nagar, an attempt for a compromise was made but the same failed. On a consideration of the entire facts of the case the Additional District Magistrate (City), Kanpur Nagar came to conclusion that the wife was legally competent to keep the child with her and the case was covered by the provisions of Section 97 of Cr. P. C. He also relied upon the concession made on behalf of the husband that he has no objection in giving custody of the child to his mother. Therefore, the husband was directed to hand over the child to the mother in presence of the police and was further directed not to take away the child without due consent of the mother. The husband did not comply with the said directions of the Court. He, however, filed a revision against the said order which has also been dismissed by the VIII Additional Sessions Judge, Kanpur Nagar, vide an order, dt. 6-5-1987.
2. I have heard learned Counsel appearing on behalf of the husband. The first submission raised by learned Counsel for the applicant is that the father was, under facts of the case, guardian of the child and not the mother. The second submission is that the present case is not covered by the provisions of Section 97 of Cr. P. C. inasmuch as confinement of the child in the present case did not amount to an offence. Thirdly, it is contended that at any rate, the proper remedy of the wife in the present case was to move an application under the Guardians and Wards Act.
3. Let us now examine these contentions one by one. Under the Mohammedan Law mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years. This position continues even though she is divorced except in cases where she remarries. The word 'custody' is synonymous with guardianship. In the case of Imambandi v. Haji Musaddi AIR 1918 PC 11, it was held that Hidaya and Fatwa Alamgiri are recognised as standard authorities in this country for Hanafi Sunnis. The following extracts are illustrative of the right of custody of the mother.
4. In Hamilton Hiday Vol. 1 at page 385 it has been observed:
If a separation takes place between a husband and wife who are possessed of infant child, the right of nursing and keeping is vested with the mother because it is recorded that the woman once applied to the Prophet saying:
O Prophet of God : this is my son the fruit of my womb cherished in my bosom and suckled at my breast and his father is desirous of taking him away from me in his own 'care' to which the Prophet replied." thou hast a right in the child prior to the husband, so long as thou doth not marry with a "stranger" moreover a mother is not only more tender but also better qualified to cherish a child during infancy so that committing the care to her is of advantage to the child... .
5. In Fatwai Alamgiri Vol. 1 page 728 it has been observed:
The mother is of all the persons best entitled to the custody of her infant children during the concubial relationship as well as after its dissolution.
6. Amir Ali in Mohammedan Law, Vol. II, at page 304 has observed:
The mother can on no account give up her right of 'Hizanat' for even if she were to obtain a Khula in lieu of her abandonment of her right to her child custody. Khula will be valid and she will retain a right of Hizanat.
7. Mulla in Principles of Mohammedan Law, para 352 (18th Edition) has observed:
352. Right of mother to custody of infant children- The mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
8. A.H.A. Fyzee in Book outline of Mohammedan Law, IV Edition has stated:
Mother : Custody of an infant child belongs to the mother and this right is known as Hijanat. The mother is entitled in Muslim Law to the custody of her male child till the age of 7 years and of her female child till puberty.
9. Therefore, under the Mohammedan Law mother has got a right of custody in preference to the father as she is natural guardian of the child. Reason for this is not far to seek. Mother has affection for the child since the child was in her womb. Father, no doubt, loves the child and takes care of appropriately. But the mother brings up the child, feeds it and treats it with all care, love and softness. In this respect the father cannot be equal to the mother. He cannot even be substitute for the mother. In the case of a child, mother has obviously an edge over the father.
10. But in certain cases even mother becomes disqualified for custody. Let us examine those situations. In principles of Mohammedan Law by Mulla, para 354 (Eighteenth Edition) the disqualification of females for custody has been stated thus:
(1) if she marries a person not related to the child within the prohibited degrees (Ss. 260-261) e.g. a stranger, but the right revives on the dissolution of the marriage by death or divorce; or (2) if she goes and resides, during the Subsistence of the marriage, at a distance from the father's place of residence, or (3) if she is leading an immoral life, as where she is a prostitute; or (4) if she neglects to take proper care of the child.
11. The reason of the rule is that : if a woman marries a person who is not closely related to the child, the child may not be treated kindly. It is otherwise, however, where the mother, for instance, marries her child's near relation because such man on remarriage is also expected to be kind to the child. But that is not absolute and it is open to the Court to appoint the mother as the guardian even if she has married a stranger, if the Court considers it to be in the interest of the minor.
12. Although heavy burden is cast on the person claiming custody in preference to the natural guardian to show that welfare of the minor demands that custody should be with him, yet in the present case the father has not discharged any burden and there is no material on the record to disqualify the mother from acting as natural guardian of the child. On the other hand, it is apparent from the order of the trial Court that the husband had himself agreed in giving custody of the child to the mother provided she does not claim any maintenance of the child. In this view of the matter. I hold that on the admitted facts of the present case the mother was the natural guardian and is entitled to the custody of the child and not the father as claimed by him.
13. This brings me to examine the second controversy raised on behalf of the applicant that the present case is not covered by the provisions of Section 97 of Cr. P. C. The said section reads as follows:
97. Search for persons wrongfully confined : If any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined, and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate who shall make such order as in the circumstances of the case seems proper.
An analysis of the above would disclose that on being moved by the applicant, the Magistrate concerned has to apply his mind to the allegations made by the applicant and if he has reasons to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant. After a search warrant is executed the person if found shall be produced before the Magistrate, who will make such order in the circumstances of the case as he thinks proper.
14. In Halsbury's Laws of England, Vol. II, Fourth Edition, page 779, Article 1469, the law laid down in this connection is:
A parent guardian, or other person who is legally entitled to the custody of a minor, can regain that custody when wrongfully deprived of it by means of 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 restrain or force is being used towards the minor by the person in whose custody and control he is for the Unit : being.
(emphasis supplied).
15. To the same effect are the views expressed in the case of Vinayak Goyal v. Prem Prakash Goyal 1981 All WC 457 : 1981 All LJ 752 wherein a Division Bench of this Court has opined that if under the personal law the mother is the natural guardian of the minor, the child cannot be retained by the grandfather or grandmother of the child against the wishes of the mother of the child. It has further been held in the said case that in such cases a detention of the minor child should be treated to be illegal and unlawful by any person against the wishes of the natural guardian.
16. In the case of S. Rama Iyer v. K.V. Nataraja Iyer AIR 1948 Mad 294 : (1948) 49 Cri LJ 369 the question that arose in connection with an application under Section 491, Cr. P. C. was whether a direction be made that the minor, who was 13 years of age, be given to the father. The Madras High Court took the view that since the minor was incapable of forming any opinion, his detention even if he remains in the custody of the maternal grandfather of his free will must be deemed to be illegal as against a person who is better entitled in law to take his custody, i.e. his father, and who is desirous to take the minor into his custody. The conclusion, therefore, that was drawn in the case of S. Rama Iyer (supra) is that in the case of a minor, his detention would be treated as illegal and unlawful if he is detained by any person against the wishes of the guardian who is legally entitled to his custody. This case of Madras High Court was approved later on by the Supreme Court in the case of Gohar Begum v. Suggi alias Nazma Begum .
17. In R. v. Clarke (1957) 7 KL and BL 186 : 119 ER 1217, Lord Campbell C.J. has stated at page 193:
But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty.
18. The Supreme Court in the case of Gohar Begum (supra) has relied on the aforesaid observation and has held that the Courts in our country are constantly taking the same view. See Rama Iyer v. Nataraja Iyer AIR 1948 Mad 294 : (1948) 49 Cri LJ 369 and Zara Bibi v. Abdul Razzak .
19. The learned Counsel appearing for the applicant has cited before me the case of Rohtash v. Hardas Singh (Criminal Revn. No. 967 of 1977, decided by this Court on 17-2-1978) (Reported in 1978 All Cri R 188). A perusal of the said judgment however discloses that the age of the child, which is material factor in the present case, was not mentioned in the said case. Moreover, I find that in the said case the allegation was that the girls in question were sought' to be kidnapped for sale and the opposite parties wanted to earn money or by making them to lead an immoral life. It is, therefore, clear that the girls in question in the case of Rohtash v. Hardas Singh (supra) had crossed the age of the lawful guardianship of the mother and the said case is of no assistance to the applicant.
20. On the other hand in a similar situation when a child aged 4 years was removed from custody of the muslim mother by the husband by applying physical force, the issuance of a search warrant at the instance of the mother was held to be justified. See K. Pareekutty v. Ayyikkal Ayissakutty 1978 Cri LJ NOC 98 : 1978 Ker LT 33. It was further held that in such a case it was the subjective satisfaction of the Magistrate to come to conclusion that there was confinement of the child which amounted to an offence and the same cannot be interfered with in revision unless a strong case is made out. The Bombay High Court has in the case of Sk. Razak v. Riyasathbi 1975 Cri LJ 1131, has also taken a view to the same effect. In my opinion, it is revolting to , judicial conscious and modern sense of justice and fair play that a person who has lawful custody of the minor should be deprived of such a custody by crude method as has been adopted by the husband in the present case particularly when such a forcible removal by the husband has no sanction under the law. Removal of the child by using physical force from the custody of the mother is prima facie a wrongful act, more so when the child is of a tender age of 1 1/2 years only. This act on the part of the husband of placing the child beyond the reach of the mother in such circumstances in my opinion in itself amounts to wrongful confinement.
21. In the present case the lady concerned, who is mother of the child, acting as natural guardian had stated before the Magistrate that her child aged 1 1/2 years was forcibly taken away by the husband from her custody without her consent and that such a confinement amounted to an offence. Having given my anxious consideration to the admitted facts of the present case and personal law of the parties I find that the contention raised on behalf of the applicant lacks merits. The learned Sessions Judge has in her order dt. 6-5-1987 recorded a finding of fact that the child was forcibly taken away from the custody of the mother without her consent and that there is a clear assertion in the affidavit of the mother that the minor child is being confined by the husband to cause his death by not proper bringing up and that the proper and speedy remedy was, under facts of the case, essential. If we turn to the provisions of the I.P.C. 1 find that the ingredients of wrongful restraint and wrongful confinement as defined under Sections 339 and 340 and punishable under the said Code are present in the case. It must not be lost sight of the fact that the child in question is of a tender age of 1 1/2 years and he has been deprived of the company of his mother and by doing so the husband has committed an offence, as stated above.
22. At any rate, despite the order dated 16-4-1987 of the Additional District Magistrate (City) Kanpur, directing the husband to deliver the child to the mother was passed yet the husband has so far not delivered the child to the mother. Hence another continuing offence punishable under Section 345 of the Indian Penal Code has been committed by the husband inasmuch as the husband wrongfully continues to confine the child for whose liberation an order has been issued by the Court.
23. Under the circumstances I hold that there is no substance in the second submission also that the case was not covered by the provisions of Section 97 of Cr. P. C.
24. Adverting to the third contention raised that in the present case the proper remedy for the wife is to file an application under the Guardians and Wards Act, I do not agree with this contention. It is important to bear in mind the guidelines set out by the Supreme Court in the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor . In this case, the wife Dr. Mrs. Veena Kapoor, had filed a habeas corpus petition in the High Court asking for custody of 1 1/2 year old child Akhileshwar, who was in the custody of the father, on the ground that the child was in the illegal custody of the father. This petition was dismissed by the High Court on the ground that the custody of the child with the father cannot be said to be illegal. The Supreme Court, however, has held as under:
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... .
25. In accordance with the aforesaid view of the Supreme Court, in the present case also the guiding factor is not the legal right of the contesting parties but the paramount consideration is the welfare of the minor. In the case of Vinayak Goyal (1981 All LJ 752) (supra) a Division Bench of this Court has further interpreted the word "welfare of the minor'. The Division Bench opined:
16. The expression "welfare" has to be read in the largest possible sense as meaning that every circumstance must be taken into consideration, and the Court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do. In Queen v. Gyngull (1893) 92 QBD 232 at page 248, Lord Justice Lindley observed:
The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money or by physical comfort only, the word must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as his physical well being. Nor can ties of affection be disregarded.
26. In the case of Vinayak Goyal (supra) the question of alternate remedy by filing an application under the Guardian and Wards Act was also taken into consideration. It was held that a writ of habeas corpus for the custody of the child was maintainable despite of alternative remedy of filing an application under the Guardians and Wards Act, A Full Bench of this Court in the case of Iqbal Ahmad v. Sabban Ali Khan in Writ Petn. No. 3264 of 1980, decided on 25-1-1985, (Reported in 1985 All WC 417) has taken the view that despite the availability of remedy under the Guardians and Wards Act, the writ petition would still be maintainable. On this aspect of the matter in the case of Gohar Begum (1960 Cri LJ 164) (supra) the Supreme Court in paragraph 10 has observed as under:
We further see no reason why the appellant should have been asked to proceed under the Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under Section 491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under Section 491. That is well established as will appear from the cases hereinafter cited.
27. A similar plea of availability of alternate remedy under the Guardians and Wards Act was taken and negatived by the Supreme Court in yet another case of Dushyant Somal v. Sushma Somal . To my opinion, therefore, what is relevant under the facts of a particular case is not the type of remedy proceeded with by an applicant whether by way of an application under the Guardians and Wards Act, or by way of an application under Section 97, Cr. P. C. or by way of a writ of habeas corpus. In all such situations, the paramount consideration is the welfare of the minor. As already held by me that the exigency of the present case demanded that the child should be immediately restored to the custody of the mother.
28. The case of Khatiza Begum v. Gulam Dastagir , cited and relied upon on behalf of the applicant is distinguishable as that was a case in which claim of the mother as guardian of the child was not in question. At any rate, in the said case claim of the father for the custody of the child was negatived and it was held that the mother's mother was the rightful person entitled to the custody of the child.
29. Moreover as already held by me above that in the present case the application of the mother under Section 97 of Cr. P. C., was maintainable therefore if once the ingredients of Section 97 of Cr. P. C, are satisfied. In my opinion the mother was entitled to the speedy remedy available to her under the law because of the tender age of the child and the exigency of the situation that demanded restoration of the custody of the child to the mother at the earliest possible moment. To my mind Srrtt, Hasin Bano cannot be denied relief its summary proceedings taken by her and it will be unjust and against the welfare of the child also to ask her to take recourse to the relevant provisions available under the Guardians and Wards Act. The contention regarding alternate remedy taken up by the applicant, therefore, fails.
30. Lastly, it is submitted on behalf of the husband that the child is still with the father and will remain until the wife comes and joins the husband. In this connection the learned Sessions Judge has recorded a finding in revision that retention of the child is being used by the husband to satisfy his ego as there are difference between them. Although the husband had before the trial Court agreed to restore back possession to the wife, yet he has not so far done it. I find that the child is being retained to serve as an oppressive instrument against the wife to abide by and agree to the dictates of the husband. Any way, the latest position is that the husband is still retaining the child with him despite specific orders passed by the Courts below.
31. In the result, this application filed by the husband for interference under Section 482 of Cr. P. C. fails and is rejected summarily. In view of the facts mentioned in the immediately preceding paragraph the husband is directed to comply forthwith with the order of the trial Court for delivery of custody of the child to Smt. Hasin Bano.