SHAHID KHAN Vs. ANJUM PASHA

JUDGEMENT

(1.) The Petitioner by this petition of habeas corpus seeks production of his son stated to be aged over 7 years from the custody of his ex-wife and her brother and mother impleaded as Respondents. It is the case of the Petitioner himself that the child is in the custody of mother at Hyderabad since May 2009.

(2.) It has been enquired from the counsel for the Petitioner as to how this petition would be maintainable in as much as a habeas corpus petition cannot be a substitute for a proceeding seeking guardianship of the minor child.

(3.) Counsel for the Petitioner has referred to Gohar Begum v. Suggi, 1960 AIR(SC) 93 in para 10 whereof habeas corpus petition was held to be maintainable for the reason of the Respondent in that case having no legal right to the custody of the minor child. Reference is also made to para 357 of Mulla Principles of Mahomedan Law 16th Edition laying down that the father is entitled to custody of a boy over seven years of age. Reference is further made to Smt. Farjanabi v. S.K. Ayub Dadamiya, 1989 AIR(Bom) 357 in para 6 whereof it was observed that under the Muslim law, by which the parties hereto are governed, the father is entitled to custody of son over seven years of age. It is thus contended that the Respondent mother has no right to the custody of the minor and the Petitioner being entitled in law to custody is entitled to enforce the said right through this petition for habeas corpus.