FATHIMA Vs. KUNHAMMED HAJI

JUDGEMENT

(1.) When a six year old muslim boy (by name 'Ajinas') was with his mother, a petition was moved by the paternal grandfather of the child before a judicial magistrate of first class for an order under S.97 of the Code of Criminal Procedure (for short 'the Code'). Learned magistrate directed the mother to produce the child in court. This petition is filed by the said mother in challenge of the magistrate's order.

(2.) Petitioner is the wife of one Moidu who is employed in a Gulf country. Ajinas was born to them. It was Moidu's father who filed the petition in the magistrate's court alleging that on 23-8-93 Ajinas' mother along with her people abducted the child while the child was returning from school and thereafter the child was being kept in wrongful custody without permitting him to go to school. Moidu's father claimed that Ajinas was in his custody till 23-8-1993 and the child was attending his school while residing in the house of Moidu. The petition for a search warrant was filed by Moidu on the said allegations. Learned magistrate has thereupon passed the order directing the petitioner to produce Ajinas in court.

(3.) There is no dispute that Ajinas has not attained the age of seven. Under Mohamedan Law, mother is entitled to the custody of a male child till he attains the age of seven and of a female child till she attains puberty. (Vide Mulla's Principles of Mohamedan Law S.352).