K M R SULTAN AKBARSHA Vs. SULTANASOFIA BEGUM

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India has been file by the petitioner for the issue of a writ of habeas corpus for directing the first respondent herein to produce the body of the petitioner's minor son, Sultan Arafsha Anwar alias Perosha before court and for his being set at liberty by his custody being handed over to the natural guardian, viz, the petitioner himself. THIS first respondent is the daughter of one S. M. Mohamed Miskeen, a Chartered Accountant of Tiruvarur, Thanjavur district. She was given in marriage to the petitioner who is none other than her paternal uncle's son, on 29-8-1974. In about a year's time the minor son Sultan Arafsha Anwar alias Perosha (hereinafter referred to as Perosha) was born to them. There were differences of opinion between the petitioner and the first respondent, and eventually, it was found that they could not lead life together as man and wife. The first respondent came away with the child to her father's house and was living with her parents. Certain moves of the petitioner made the first respondent apprehend that the petitioner was likely to snatch away the child from her. Hence she filed a petition O.P. No. 45 of 1977 on 12-9-1977 under the Guardians and Wards Act, before the District Court at Nagapattinam and also obtained an order of interim injunction against the petitioner in I.A. No. 172 of 1977 restraining him from interfering with her custody of the child. At that stage of matters, certain elders intervened and it was agreed that the petitioner should divorce the first respondent by presenting 'talaq' and, in return, the petitioner should be paid a sum of Rs. 13, 000/-, and his mother should be paid a sum of Rs. 11, 300/- by the first respondent's father. After the divorce was effected the first respondent has been staying with her father and educating Perosha in an English medium school at Tiruvarur.

(2.) SUBSEQUENT to the divorce the petitioner has married another woman. Likewise, the first respondent also has married one T. A. Munawardeen, son of the second respondent. It is common ground that through the second marriage, the first respondent has got a child now.

(3.) THE first and second respondents have filed detailed counter-affidavits. In her counter-affidavit the first respondent has stated that she was subjected to ill-treatment and cruelty by the petitioner and, unable to bear such treatment she was forced to return to her parent's house. She has also stated the circumstances under which she filed O.P. 45 of 1977, on the file of the District court Nagapattinam and as to how the marital ties between herself and the petitioner were snapped by the pronouncement of 'Talaq' by the petitioner. THE further averments are that one of the terms of the compromise entered into between the parties was that the petitioner was to give up his rights over minor Perosha and the first respondent was to have the custody of the child all through and it would be her look-out and responsibility to bring up the boy. She has also stated that the petitioner has no interest in or love for the minor boy and the present petition is only intended to harass her. She has stated that the remarriage cannot be treated as a disqualification for her having custody of the minor, inasmuch as she as well as her second husband are devoted to the boy's welfare. As regards the averments that she boy to Dubai, the first respondent has stated that there is no such proposal at all and she is prepared to given solemn assurance that the minor boy will not be taken to Dubai as apprehended by the petitioner. Lastly, the first respondent has stated that the petitioner is not a fit and proper person to have the custody of the minor.