IQBAL AHMAD Vs. SHABAN ALI KHAN

JUDGEMENT

(1.) THE reference made by the Division Bench of this Court on 30 -1 -1981 for constitution of a larger bench on the preliminary objection which was raised by the Respondent that writ of habeas corpus was not maintainable as complicated questions of fact averred can only be gone into, in proceedings under Guardian and Wards Act and not a writ petition, has led to the constitution of this Full Bench. The Division Bench was of the view in Writ Petition No. 7296 of 1976 Fakhrunnisan v. Qamar Ahmed now reported in 1980 Lucknow Law Journal 237 that a writ in the nature of habeas corpus was maintainable in appropriate cases two broadly stated questions of law and did not bring about distinction between the cases in which relief may be granted to a Petitioner in a writ of habeas corpus and cases where he may be asked to seek his remedy under Guardian and Wards Act.

(2.) AS the entire case was referred to the larger Bench we heard the entire case and also summoned the minor's mother and the minor before the Court. On 25 -1 -1985 we pronounced the operative portion of the order dismissing the writ petition for reasons to be assigned later on and the same are being assigned now.

(3.) A writ of habeas corpus is a writ of right. If it is for custody of child between parents it can be a writ of course also. In such cases legal principles as to the entitlement of custody will have full say except when the paramount consideration of welfare may clearly require otherwise. The English Courts have consistently held that neither the allegation that the child is under no restraint nor that the child consents to this situation will prevent them from acting on habeas corpus. A reference in this connection may be made only to two cases: