GULSAFA AND ORS Vs. MOHD UMAR AND ORS

JUDGEMENT

(1.) This writ petition in the nature of habeas corpus has been filed on behalf of Km. Gulsafa, daughter of Mohd. Umar through her mother Smt. Sajida Bano with the allegation that Smt. Sajida Bano was married to Mohd. Umar in the year 2010 and in the year 2011 one baby child, namely, Gulsafa was born. In the year 2013 the opposite party no.1 Mohd Umar went to SAudi Arabia for the purpose of his job. During his absence the opposite parties no. 2 to 4 so much harassed Smt. Sajida Bano that she was forced to leave her matrimonial home and since then she is living with her parents. In the year 2015, when the opposite party no.1 Mohd. Umar came back from Saudi Arabia, Smt. Sajida Bano went to her matrimonial home and again tried to live with her husband but she was not allowed to stay there and since then she is living with her mother. It is alleged that on 12.1.2016, the opposite parties no.1 to 4 came to the house of Smt. Sajida Bano and forcibly took away the minor girl Km. Gulsafa along with them and an information to this occurrence was given to the police but no action was taken. Thereafter Smt. Sajida Bano made several efforts to meet her daughter but she was not allowed to even see her face. It was also alleged in the writ petition that the opposite party no.1 has performed the second marriage and the minor daughter being only aged 5 years has every right to live with her mother and natural guardian. The opposite parties no.1 to 4 have illegally detained the detenue Km. Gulsafa and are not permitting her to live with her mother.

(2.) The opposite parties no. 1 to 4 have filed their counter affidavit and it has been stated by them that Smt. Sajida Bano herself refused to live with her husband and in the month of January, 2016 the divorce took place between them by mutual consent. The said divorce was also reduced into writing in the presence of several witnesses. The name of the daughter of Mohd. Umar by whom the present writ petition is filed, is not Gulsafa but her name is Gulfasan, she was born on 30.1.2009 and is presently aged about 7 1/2 years. It has also been stated that she is studying in L.K.G. at Raebarely. The averments made in the writ petition are not correct. There has already been divorce between Sajida Bano and her husband Mohd. Umar. The minor daughter is comfortably living with her father and is studying in a School. The mother of the detenue has no source of income and she will not be able to meet the daily needs of the detenue. There are so many persons in the family of the opposite party no.1 to look after and take care of the minor child. It has also been submitted that in case Smt. Sajida Bano wants the custody of her minor daughter, she may approach the appropriate forum under the Guardian and Wards Act. Since the detenue is living with her father, she cannot be said to be under illegal detention and the present writ petition is liable to be dismissed on this ground alone.

(3.) The petitioner has filed rejoinder affidavit denying the allegations made in the counter affidavit and reiterating the averments made in the writ petition.