Allahabad High Court
Sahil (Minor) And Another vs State Of U.P. And 3 Others on 3 September, 2020
Equivalent citations: AIR 2020 ALLAHABAD 213, AIRONLINE 2020 ALL 1957
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 A.F.R. Case :- HABEAS CORPUS WRIT PETITION No. - 387 of 2020 Petitioner :- Sahil (Minor) And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashutosh Kumar Pandey Counsel for Respondent :- G.A. Hon'ble J.J. Munir,J.
1. This Habeas Corpus Writ Petition has been effectively filed by the second petitioner, Rehana Bano, asking that the first petitioner, Sahil, her minor son, aged a little less than four years, be ordered to be produced before the Court from the unlawful custody of respondent no.4, Abdul Sohrab, the minor's grandfather and liberated from the said custody, ordering him to be placed in his mother's custody.
2. Heard Sri Ashutosh Kumar Pandey, learned Counsel for the petitioners and Sri Indrajeet Singh, learned A.G.A. appearing on behalf of the State.
3. Respondent no.4, Abdul Sohrab appeared in person, but did not file a counter affidavit. He produced the minor, Sahil in compliance with the rule nisi issued by this Court.
4. The case of the second petitioners is that she was married according to Muslim rites on 15.05.2013 to the late Amjad Khan son of Sohrab Khan, respondent no.4. After solemnization of marriage, she cohabited with her husband, discharging her conjugal obligations. It is asserted that on 28.10.2016, the minor detenue, Sahil was born of the wedlock of parties. The second petitioner's deceased husband, Amjad Khan got the name of their newly born son registered with the competent Authority, under the Registration of Births and Deaths Act, 1989 on 28.10.2016. The certificate of birth was issued on 13.12.2016. That certificate is on record as Annexure no.1 to this petition.
5. It is averred by the second petitioner that by ill-fate, she lost her husband, Amjad Khan on 08.02.2017. Once widowed, she faced a barrage of physical and mental harassment, besides torture at the hands of her in-laws, including respondent no.4. It is averred in paragraph no.6 that respondent no.4 would not be content with ill-treating his daughter-in-law, the second petitioner; he would beat up the first petitioner, the second petitioner's minor son. It is the second petitioner's case that on 05.09.2019 at about 7 O' clock in the morning, she was thrown out from her matrimonial home by the fourth respondent, acting in concert with the other in-laws, who beat her up and relieved her of her jewelry and other personal belongings. To add to it, the fourth respondent and other in-laws forcibly snatched away her minor son, Sahil. It is averred that the minor is a young child, less than three years and stands deprived of the second petitioner's maternal love, affection, company and security.
6. It is by now a well reputed and an unexceptionable principle of law that in child custody matters, welfare of the minor is of paramount consideration. But, before the Court could look into those considerations, Sri Indrajeet Singh, learned A.G.A. has raised a preliminary objection that a writ of habeas corpus cannot be invoked to decide virtually custody disputes about minors, between family members. He submits that the fourth respondent is the minor's grandfather, whereas the second petitioner is his mother. If the mother feels that she is entitled to the minor's custody, she ought to go to the Court of competent jurisdiction under the Guardians and Wards Act, 1890. In fact, according to the learned A.G.A., Section 25 of the Guardians and Wards Act is the ideal remedy for a natural guardian to secure custody of a minor from another natural guardian, vis-a-vis whom the claiming guardian may feel that he/ she has a better right to the minor's custody. A writ of habeas corpus, according to Sri Indrajeet Singh, is not at all available to resolve custody disputes regarding minors.
7. This question fell for consideration of the Supreme Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42. After review of earlier authority of their Lordships of the Supreme Court, it was held:
"19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."
8. It is true that the grandfather is not an utter stranger and, in fact, under the Personal Law of parties, who are Muslims, the grandfather may be regarded as the natural guardian in the absence of the father, who dies without appointing a testamentary guardian or an executor. But under the personal law of parties also, there is a distinction made between the natural guardianship that belongs to the father and the right to custody that vests in the mother until the age of seven years, in case of a minor boy. In case of a minor girl, that right to custody for the mother extends until the girl attains the age of puberty. In this regard, it may be mentioned that under the personal law of parties, there is a clear distinction about the law relating to guardianship of the person of a minor and guardianship of his/ her property. Reference may be made with profit to Mulla's Principles of Mahomedan Law (Nineteenth Edition) by M. Hidayatullah and Arshad Hidayatullah. Section 352 of Mulla's Mahomedan Law, which falls under Part B of Chapter XVIII dealing with ''Guardians of the Person of a Minor', provides:
"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."
9. Again, sections 353, 354 and 355 that have material bearing on the issue are extracted below:
"353. Right to female relations in default of mother.- Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:-
(1) mother's mother, how highsoever;
(2) father's mother, how highsoever;
(3) full sister;
(4) uterine sister;
(5) consanguine sister;
(6) full sister's daughter;
(7) uterine sister's daughter;
(8) consanguine sister's daughter;
(9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters.
354. Females when disqualified for custody.- A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody -
(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 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.
355. Right of male paternal relations in default of female relations.- In default of the mother and the female relations mentioned in sec. 353, the custody belongs to the following persons in the order given below:-
(1) the father;
(2) nearest paternal grandfather;
(3) full brother;
(4) consanguine brother;
(5) full brother's son;
(6) consanguine brother's son;
(7) full brother of the father;
(8) consanguine brother of the father;
(9) son of father's full brother;
(10) son of father's consanguine brother;
Provided that no male is entitled to the custody of an unmarried girl, unless he stands within the prohibited degrees of relationship to her (ss. 260-261).
If there be none of these, it is for the Court to appoint a guardian of the person of a minor."
10. It would be noticed that in sharp contrast to the law governing guardianship of the person of a minor, Part C of Chapter XVII of Mulla's Mahomedan Law, enunciates the law quite differently regarding guardianship of the property of a minor. Section 359 provides thus:
"359. Legal guardians of property.- The following persons are entitled in the order mentioned below to be guardians of the property of a minor:-
(1) the father;
(2) the executor appointed by the father's will; (3) the father's father;
(4) the executor appointed by the will of the father's father."
11. Here, a juxtaposition of Sections 352, 353 and 355 on one hand and Section 359 on the other brings out in sharp relief the distinction between the right to custody or guardianship of the person of a minor and the right to guardianship of his/ her property.
12. The principles of the personal law governing parties show that so far as the right to custody of a male child, who is a minor is concerned, the mother has an unqualified right in preference to the father till the child attains the age of seven years. The right, however, is lost once she remarries. If she does marry, the right to custody accrues to the father. A different principle applies where the mother is not there. In that case, it goes, according to a graded entitlement of ten different female relatives of the mother and the father in the order indicated under Section 353 (supra). Upon a failure of female relatives, it goes to an ordered list of ten male relatives, indicated under Section 355 (supra).
13. This entitlement of the mother to the custody of a minor male child (as well as female, which is not relevant here) fell for consideration of the Privy Council in Imambandi and ors. vs. Sheikh Haji Mutsaddi and ors., (1918-19) 23 CWN 50, where it has been held by their Lordships:
"It is perfectly clear that under the Mahomedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni law) is the legal guardian. The mother has no larger powers to deal with her minor child's property than any outsider or non-relative who happens to have charge for the time being of the infant....."
"As already observed, in the absence of the father, under the Sunni law the guardianship vests in his executor. It the father dies without appointing an execute or (wasi) and his father is alive, the guardians hip of his minor children devolves on their grandfather. Should he also he dead, and have left an executor, it vests in him. In default of these de jure guardians, the duty of appointing a guardian for the protection and preservation of the infants' property devolves on the Judge as the representative of the Sovereign (Baillie's "Digest," ed. 1875, p. 689; Hamilton's Heddya, Vol. IV, p. 555). ......"
14. This then is the position about the entitlement to the custody of a minor male child under the Muslim Law. But, it must be remembered that the personal law of parties is not the final word about entitlement to custody or guardianship in India. The right is regulated by statute. The statute is the Guardians and Wards Act, 1890. The principle that the provisions of the Guardians and Wards Act would prevail over the personal law of parties in the matter of appointment or declaration of a guardian of the person or the property of a minor, is a principle that has been accepted without cavil by consistent authority. The point was considered and the law expounded in Rafiq vs. Smt. Bashiran and another, AIR 1963 Raj 239. In Rafiq (supra), Jagat Narayan J. after doing a survey of the provisions of Sections 17 and 19 of the Guardians and Wards Act and relying on a decision of this Court in Mt. Siddq-un-Nissa Bibi v. Nizam-Uddin Khan(1) Sulaiman, AIR 1932 All 215, held:
"The learned Senior Civil Judge ignored the provisions of Sec. 19 of the Guardians and Wards Act, which runs as follows:--
"Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person--
(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor."
He did not come to a finding that the father is unfit to be the guardian of the person of the minor.
It may be mentioned here that where the provisions of the personal law are in conflict with the provisions of the Guardians and Wards Act the latter prevail over the former. It is only where the provisions of the personal law are not in conflict with the provisions of the Guardians and Wards Act that the court can take into consideration the personal law applicable to the minor in the appointment of a guardian. The provisions of Sec. 19 of the Guardians and Wards Act prevail over the provisions of Sec. 17 which runs as follows:--
"(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will."
(3) In Mt. Siddq-un-Nissa Bibi v. Nizam-Uddin Khan, ILR 54 All 128 : (AIR 1932 All 215), Sulaiman, Acting C.J. observed at page 134 (of ILR All) : (at p. 217 of AIR): --
"The personal law has been abrogated to the extent laid down in the Act. Where, however, the personal law is not in conflict with any provision of the Act, I would not be prepared to hold that it has necessarily been superseded."
and at page 131 (of ILR All) : (at p. 216 of AIR)--
"There can be no doubt that so far as the power to appoint and declare the guardian of a minor under Sec. 17 of the Act is concerned, the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the court, which must look to the welfare of the minor consistently with that law. This is so in cases where Sec. 17 applies. In such cases the personal law has to this extent been superseded that it is not absolutely binding on the court and can be ignored if the welfare of the minor requires that some one else, even inconsistently with that law, is the more proper person to be appointed guardian of the minor. Sec. 19 then provides that "Nothing in chapter shall authorise the Court ...... to appoint or declare a guardian of the person (a) of a minor who is a married female and whose bus-band is not, in the opinion of the court, unfit to be guardian of her, person, or (b)...... of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor." The language of the section, as it stands, obviously implies that when any of the three contingencies mentioned in the sub-clauses exists there is no authority in the court to appoint or declare a guardian of the person of the minor at all; that is to say, the jurisdiction of the court conferred upon it by Sec. 17 to appoint or declare a guardian is ousted where the case is covered by Sec. 19."
(4) There is nothing on record to show that the father of the minor is unfit to be the guardian of her person. As was observed in B.N. Ganguly v. G.H. Sarkar, AIR 1961 Madh-Pra 173 there is a presumption that the parents will be able to exercise good care in the welfare of their children."
15. The entire law about the right of the mother to the custody of her minor children, a son and a daughter, where the parties were an estranged Muslim couple, was considered by the Bombay High Court in Mohammad Shafi vs. Shamin Banoo, AIR 1979 Bom 156. It must be remarked that the facts of the case in Mohammad Shafi show that it was truly a custody dispute between the estranged parents of the two minors, where the application by the mother for custody appears to be one made under Section 25 of the Guardians and Wards Act. She had asked for the custody of her minor son, aged four years and a minor daughter, aged two and a half years, at the time of commencement of action. The facts of the case founded on pleadings of parties can best be understood by a reference to their statement in paragraph nos.2 and 3 of the report, that read:
"2. An application for appointment of herself as guardian and for the custody or returning the minors to her custody was filed by Shamim Banu against her husband Mohomed Shafi under sections 7 and 25 of the Guardian and Wards Act. She alleged therein that she was married to Mohomed Shafi and bore three children from respondent Mohomed Shafi, namely Mohomed Raees whose age was given as 4 years, Waheeda Begum, whose age was given as 2½ years and Farooque who was aged 1½ years at the time when this application was presented. She then stated that she was given very cruel treatment by the respondent who wanted to marry another woman and drove her out and at that time snatched Mohomed Raees and Waheeda Begum from her. Farooque was then only a month old and was allowed to be retained with her. She, therefore, filed this application for custody or return of the custody of the minors to herself, namely, Mohomed Raees and Waheeda Begum and for appointment of herself as the guardian under section 7. She also stated in the application that the respondent has married Sajjidabegum after the petitioner was driven away and that the respondent and his newly married wife are living together along with the minors who were, according to her, treated cruelly by the wife, step-mother and the respondent.
3. The respondent filed his written statement to this application and denied that the petitioner was driven away and was treated cruelly. He claimed that he was the natural father of the minor children whose ages were not disputed and was, therefore, entitled to their custody. He contended that the petitioner was divorced by him on 7th November, 1975 and that she was a woman of suspicious character and had connections with others and used to leave the house of the respondent at night in the company of somebody secretly. That she has left him with a view to carry on her affair with her boy friend. In these circumstances and also under the personal law to which the parties belong, namely, Mahomedan Law, he claimed that he was entitled to the custody of the children and was the proper and legal guardian of the minors. It is his claim that the application is motivated by the proceedings which she has commenced under section 125 of the Code of Criminal Procedure against him. He did not deny that he has married a third time, but denied that either the minors were given cruel treatment by him or his new wife. Lastly, he contended that the minors are being properly looked after and that the petitioner who is staying with her father has no means of income as also her parents which could be sufficient to bring up these minor children. That they would be practically starving whereas the respondent has sufficient earnings of his own. That there are other members in his family who come to him and look after his children by the petitioner."
16. After a searching analysis of the provisions of the Guardians and Wards Act and review of well-known authority on the point, R.D. Tulpule, J. held, summarizing the principle:
"33. In my opinion, as pointed out, the provisions of the personal law applicable to the parties stand superseded to the extent to which a provision is made and which is inconsistent or contrary to that personal law in the Guardians and Wards Act. If the definition in section 4(2) is capable of including the person who is not a natural or legal guardian at the moment, but has the care of the minor, then it seems to me that he can maintain an application under section 25 of the Act. If such an application can be maintained and if the minor was in the custody of such person, as in the present case, a legal guardian cannot say if it is in the interest of the minor and for the welfare of the minor that the custody should be handed over to such guardian as contemplated under section 4 of the Guardians and Wards Act, that such custody should not be granted. It seems to me, therefore, that if it was in the interest of the minor and for its welfare to award the custody to such guardian as defined under section 4(2) to him, its custody should be given. It seems to me that even the personal law applicable to the parties in this case recognises the right to the custody of the mother in spite of the father being a legal and natural guardian during certain period. As I pointed out that could not be upon any other consideration except that the mother is the best person suited to take care of the minor. If that is so, I am inclined to think that she comes within the definition of ''guardian' as contemplated under section 4. In that view I do not think particularly in the present circumstances any other conclusion can be reached as regards what is in the interest and welfare of the minors."
17. It is clear from the position of law as it stands that so far as the custody of a minor child is concerned, the mother is entitled to it until the child is of tender age, unless there be a clear disentitlement inferable. This right of the mother to the child's custody is not based on the personal law of parties alone, but on a well acknowledged principle arising from human nature - and if this Court may dare say from the animal nature of man - that the mother is best oriented to look after the welfare of her infant or young child. The mother has always been regarded to be best equipped to take care of the needs of a young child, and secure his/ her welfare compared to a father. This right of the mothers is subject only to known exceptions, like her marriage to a stranger or the mother living a demonstrably immoral life. The mother's right is so well established, that in case of a minor of tender years, any other relative holding the child in his/ her custody while the mother is around, would be unlawful custody. Of course, the principle would not apply if the mother is disentitled under some reputed exception.
18. Here, it is not the father who holds the child in custody, claimed to be unlawful by the second petitioner. It is the grandfather of the minor. This Court is of opinion that the mother asking for her child's custody from a grandfather, who is resisting the mother's right, certainly entitles the mother to say that the grandfather's custody is so unlawful that she is entitled to a writ of habeas corpus. She need not be relegated to her ordinary remedy of bringing and pursuing an application, under Section 25 of the Guardians and Wards Act.
19. To the end of a reassurance of the principle that a writ of habeas corpus in matters relating to custody of minors may be issued, reference may be made to a recent decision of a Division Bench of this Court in Manuj Sharma vs. State of Uttar Pradesh & Others, Habeas Corpus Writ Petition No.82 of 2019, decided on 12th April, 2019. In Manuj Sharma (supra), after a searching review of authority on the point, whether a writ of habeas corpus can lie to seek custody of a minor between an estranged couple, particularly, the decisions of the Supreme Court in Nithya Anand Raghavan v. State of NCT of Delhi and others, (2017) 8 SCC 454 and Syed Saleemuddin v. Dr. Rukhsana and Ors., (2001) 5 SCC 247, it has been held:
"24. Having considered the aforesaid judgments of the Supreme Court and the principles laid down in the aforestated cases for grant of writ of habeas corpus, it appears that the condition precedent for instituting a petition seeking writ of habeas corpus is the person for whose release, the writ of habeas corpus is sought, must be in detention and he must be under detention by the authorities or by any private individual. It is his detention which gives the cause of action for maintaining the writ of habeas corpus. If the allegations in the writ of habeas corpus read as a whole do not disclose the detention, in other words, if there is no allegation of illegal detention, the writ petition seeking writ of habeas corpus is liable to be rejected summarily. Such writ is available against any person who is suspected of detaining another unlawfully and the habeas corpus Court must issue it, if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ can be addressed to any person whatever - an official or a private individual - who has another in his custody."
20. It would be noticed from a perusal of the decisions of the Supreme Court in Nithya Anand Raghavan (supra) and Syed Saleemuddin (supra) referred to by the Division Bench of this Court in Manuj Sharma that the remedy of a habeas corpus to an estranged parent has not been held unavailable, even against the other parent. All that appears to be the requirement is to show that the child with the other parent or with some other member of the family is in detention and that detention is unlawful. It is but logical that in a case where one has to judge the legality of the minor's detention by the other parent or some other relative, the nature of the applying parent's right, vis-a-vis the detaining parent or relative's is decisive. The decision of their Lordships of the Supreme Court in Tejaswini Gaud also says that the jurisdiction of the High Court in granting a habeas corpus is limited by the fact whether the detention of the minor is by a person who is not entitled to his legal custody. It is true that the Supreme Court has held in Tejaswini Gaud that habeas corpus can be issued in exceptional cases. It is not that the writ is completely unavailable in matters where a parent claims custody, to which he/ she is lawfully entitled.
21. In this Court's opinion, where there is not much of a debatable right available to the other parent or some other relative, who is detaining the child contrary to the wish of the applying parent, the writ ought to issue. However, if the parent or the other relative detaining the minor has a reasonable right that he/ she can show on affidavits, the parties ought to be left to pursue their remedy under the Guardians and Wards Act. As such, what this Court has concluded hereinabove that this petition is maintainable, proceeds on valid principles.
22. Still, it has to be inquired whether the second petitioner has that kind of an ex facie and impeachable right, vis-a-vis respondent no.4, Abdul Sohrab, the minor's grandfather. This Court had the advantage of speaking to Abdul Sohrab and hearing him in person. He has appeared in person along with his wife and the minor, Sahil. He did not choose to file a counter affidavit and intelligibly placed his case before the Court. He was accompanied by his wife. On the fact being pointed out by the learned Counsel for the petitioners, he conceded that his wife is not the minor's grandmother. She is a woman, whom the fourth respondent has later married. It is, therefore, evident that the minor does not have his grandmother along with his grandfather. Rather, he has a step grandmother. The minor's father is dead. The second petitioner, Rehana Bano is therefore, the only surviving parent of the child. The Court also ascertained the parties station in life and their resources. The Court was informed by the fourth respondent, Abdul Sohrab that he is a teacher by profession and has sufficient means to maintain the minor. He said that the mother, the second petitioner, has no means of her own to maintain the minor. She is dependent upon her parents, with whom she stays after the fourth respondent's son, that is to say, Rehana Bano's husband, Amjad Khan passed away.
23. The second petitioner, Rehana Bano on the other hand stated before the Court in person, which the Court permitted despite presence of learned Counsel representing her, that she is a Postgraduate and undertakes private tuition. She is able to earn reasonably well, besides receiving generous support from her family, with whom she stays after her husband's death.
24. This Court is mindful of the fact that quite apart from what the personal law of parties says about her right to custody until the age of seven years as regards a minor male child, the welfare of the minor is certainly more secure in the mother's hand. It is far more secure than in the hands of an aging grandfather, who has married a second time and introduced a step grandmother for the minor in his family. The welfare of the minor, it is well acknowledged, is not secured by money alone. It is the product of multifaceted grooming that involves affection, supervision, guidance, education, inculcation of good human values and many other factors of like genre, that go to achieve realization of the human personality. In this case, this Court is of clear opinion that the minor's welfare under the circumstances noticed above is far better secured with the mother than in the hands of the grandfather, respondent no.4.
25. In the result, this Habeas Corpus Writ Petition is allowed.
26. The rule nisi dated 28.08.2020 is made absolute. The minor, Sahil, who has been produced before this Court in compliance with the rule nisi, is ordered to be handed over forthwith to petitioner no.2, Smt. Rehana Bano, who is present in Court. He shall remain in her custody until otherwise ordered by a Court of competent jurisdiction.
27. The fourth respondent, Abdul Sohrab, who is the minor's grandfather, shall have visitation rights to meet the child on the first Sunday of every calendar month between 10:00 a.m. to 12.00 noon at the residence of the second petitioner, Smt. Rehana Bano, situate at Village Budkuda, Tehsil, Jakhania, Police Station Budkuda, District Ghazipur. During these visitations, the minor shall be provided free access to his grandfather by the second petitioner, Smt. Rehana Bano. She shall extend due courtesy to the fourth respondent, Abdul Sohrab.
28. Let this order be communicated to the learned District Judge, Ghazipur, the learned Chief Judicial Magistrate, Ghazipur and the Superintendent of Police, Ghazipur by the office forthwith.
Order Date :- 3.9.2020 Neeraj/ Anoop