MASTER ZUBEEN Vs. PRINCIPAL JUDGE FAMILY COURT LUCKNOW

JUDGEMENT

(1.) This is a habeas corpus petition under Art. 226 of the Constitution of India, praying that the opposite parties be directed to produce the petitioner, Master Zubeen and to set him at liberty.

(2.) The facts, as they are revealed from the petition, are that on 16-4-1980, Firdous Jahan, who is the mother of the minor, Master Zubeen aged about 10 years, was married to opposite party No. 2, Abdul Wali alias Kalim Khan at Lucknow. After the marriage both of them lived at the house of opposite party No. 2 at Malihabad. On 1-5-1983 when Master Zubeen was about one months old only the opposite party No. 2, Abdul Wali alias Kalim Khan turned out the mother of the minor. Firdous Jahan, from his house. The mother of the minor, Firdous Jahan, with the child, came to Kanpur and started residing with her mother at 145, Chandra Nagar, Police station Chakeri, Kanpur. The minor was studying in school at Kanpur and the examination of the minor, Master Zubeen took place in April, 1983. The opposite party No. 2 Abdul Wali alias Kalim Khan came to Kanpur in 1985 and stayed with his wife, Firdous Jahan, for about 6 months but no maintenance was paid by the opposite party No. 2. Thereupon. Firdous Jahan filed an application under Section 125. Cr.P.C. for maintenance for herself, minor Master Zubeen and his younger brother which was allowed on 10-2-1987 by the Principal Judge, family court, Kanpur. By that order a sum of Rs. 150.00 per month was awarded as maintenance. The opposite party No. 2 merely paid Rs. 16,00.00. Thereafter the opposite party No. 2 filed a case under S. 25 of the Guardians and Wards Act in the court of Principal Judge, family court, Lucknow for the custody of the minor, master Zubeen. This case was finally decided on the basis of the compromise between the parties in the Lok Adalat on 7-7-1991. In terms of that compromise the entire family was to live at Lucknow and opposite party No. 2 Abdul Wali alias Kalim Khan was directed to maintain the family as a guardian. The Lok Adalat did not pass any order for the custody of Master Zubeen to opposite party No. 2, Abdul Wali alias Kalim Khan. The opposite party No. 2 did not comply with the order of the Lok Adalat and he did not come to reside at Lucknow. Thereafter an application for execution of the order dated 7-7-1991 was moved before the Principal Judge, family court, Lucknow. On 1-2-1993 when Master Zubeen was going for his studies, opposite party No. 4, the Station officer of Police Station Chakeri, Kanpur forcibly took away the child to Police Station, Chakeri where the minor failed to identify the opposite party No. 2, his father. Thereafter on 22-2-1993 at about 11 a.m. when the minor Master Zubeen was studying in the class, the opposite party No. 4, the Station officer of Police Station Chakeri again came and took the minor to the Police Station. It was told that an order has been passed in the execution case for the custody of the minor. Thereafter the custody of the minor, Master Zubeen was handed over to the opposite party No. 2 before the family court, at Lucknow. The order passed by the opposite party No. 1, Principal Judge, family court, Lucknow, is wholly illegal and without jurisdiction and the custody of the minor with opposite party No. 2 is illegal and wrongful. The life of the minor in the hands of the opposite party No. 2 is in danger and his studies will be affected.

(3.) The opposite party No. 2, Abdul Wali alias Kalim Khan file a counter affidavit alleging therein that from the very beginning the attitude of his wife was bad and was unbecoming of a good house wife, but he had to cope with the situation. After the birth of the child his wife left his house along with the minor child and moved an application under S. 125, Cr.P.C. at Kanpur for maintenance. As the mother of the minor did not appear in the court on the date fixed the same was dismissed for default on 25-9-1984. Thereafter his wife came and started living with him. But she again left house in the year 1985 after saying that she will return after the engagement of her sister. An application under S. 125 Cr.P.C. was again moved by her at Kanpur before the Metropolitan Magistrate. An ex parte order was passed in that application which fact came to be known to opposite party No. 2 only when a recovery warrant was issued against him. Against the ex parte order the opposite party No. 2 filed first appeal before the High Court wherein a direction was issued to opposite party No. 2 to deposit Rs. 1600.00, i.e. half of the amount claimed. Thereafter the application was finally decided on 11-1-1990 and the same was dismissed. Opposite party No. 2 thereafter filed a suit for restitution of conjugal rights on 20-1-1988 which was decreed on 11-3-1989. Thereafter a case under Section 25 of the Guardians and Wards Act was filed by the opposite party No. 2 on 22-8-1990 before the principal Judge, family court, Lucknow, which was decided by Lok Adalat. In terms of the order passed by the Lok Adalat, it was incumbent upon the mother of the minor child to live with opposite party No. 2, but the mother never came to his house and did not hand over the custody of the minor child. Thereafter execution proceedings were initiated. The order passed by the Principal Judge, family court, Luknow for restoration of the minor child to opposite party No. 2 was got executed by the opposite party No. 4, Station officer. Police Station, Chakeri Kanpur.