SHAKRA BEGUM Vs. AHMAD HASAN AND ANR.

JUDGEMENT

(1.) THIS is an application Under Section 491 of the Code of Criminal Procedure by the maternal grandmother of two infants, praying that the infants be produced before the Court and restored to the custody of the Applicant. The application is mainly directed against the lathe of the infants and against his mother. It appears that opposite -party no. Shri Ahmad Hasan married Smt. Salma Begum in 1965. Smt. Salma Begum was the daughter of the Applicant. By the marriage, Respondent No. 1 had two children, one a son named Babloo and the other a daughter named Babli. The daughter was born in December, 1969, a Allahabad and shortly after birth, her mother died. Both the children were brought up by the Applicant. According to the Applicant, Sri Ahmad, father of the two children surreptitiously took them away on March 30, 1971. She thereupon filed this application. At the time of the making of the application. Babloo was four years old and Babli was 2 1/2 years old.

(2.) THE application is strongly opposed. The main question urged by Sri Bashir Ahmad, learned Counsel for the Applicant, is that the Applicant, who is the maternal grandmother of the infants, is their lawful guardian and the father or the paternal grandmother is not their lawful guardian. He, therefore urges that the two infants should be taken from the unlawful custody of the father and the paternal grandmother and given into the custody of the lawful guardian that is to say, the maternal grandmother. He has drawn our attention to Paragraph 353 in Mulla's Mohammedan Law where it is stated that, failing the mother, the custody of a boy under the age of 7 years and of a girl who has not attained puberty, belongs to the female relatives set out in that paragraph. The mother's mother appears at No. 1 in the enumeration of the female relatives and the father's mother appears at No. 2. It is, therefore, contended on the basis of this paragraph that the Applicant who is the mother's mother of the minor children, is entitled to their custody.

(3.) IN the view that we have taken, the Applicant is not entitled to the reliefs prayed for. The application is accordingly dismissed. There will be no order as to costs. Application dismissed.