RUBI (KM) AND OTHERS Vs. HAYAT MOHAMMAD

JUDGEMENT

(1.) By this petition under Art. 226 of the Constitution of India, the petitioners have prayed for a writ of habeas corpus directing the opposite parties to produce the petitioners before the Court, and thereafter the petitioners be set at liberty. Km. Rubi, aged about 8 years, Rustam, aged about 6 years Km. Rosi, aged about 21/2 years, have filed this petition through their mother and natural guardian, Smt. Ishrat Bano. Opposite Party No. 1, Hayat Mohammad, is the grand-father of the petitioners, Opposite party No. 2, Smt. Khairunnisan is the second wife of Opposite party No. 1. Opposite party Nos 3, 4 and 5, namely Rafiq Ahmad. Mohammad Ayub and Mohammad Yaqub, are the sons of Opposite party No. 1. Smt. Ishrat Bano and Mohammad Yasin were married in the year 1972. On 11-6-1985, at about 8 a.m., at Chak Lal Mohammad, Police Station Naini, Allahabad, a shooting incident took place, in which Jamiluddin alias Jumman and Mohammad Yasin were injured and both succumbed to their injuries, Mohammad Yasin died at Swarup Rani Memorial Hospital, Allahabad and he was brought to village Barethi, where opposite party No. 1 resides, for his last rites. The petitioners, their mother, Smt. Ishrat Bano, and their invalid brother, Sohrab, also went there. Annexure 3 to the rejoinder-affidavit is copy of the report lodged by Mohammad Farrukh, the brother of Jamiluddin, at Police Station Naini, Allahabad. Crime No. 253, under Sec. 302 Indian Penal Code was registered. Annexure 1 to the counter-affidavit dated 24-8-1985 is copy of the application given on 12-6-1985 by opposite party No. 1, regarding the incident. There was divergence in the two versions but the fact remains that Jamiluddin alias Jumman and Mohammad Yasin died as a result of the incident.

(2.) In July, 1985, opposite party No. 1, Hayat Mohammad fled Suit No. 268 of 1985 against Smt. Ishrat Bano and others for a declaration that the assets of deceased Mohammad Yasin belong to the plaintiff and defendant Nos. 2 to 13 jointly. Defendant No. 1 was Smt. Ishrat Bano ; defendants 10, 11 and 12 were the present petitioners ; and defendant No. 13 was Mohammad Sohrab, another son of the deceased, who was invalid. A permanent injunction was also claimed against defendant No. 1 restraining her from taking forcible possession or disturbing the peaceful possession of the plaintiff, over house No. 96/8, Chak Lal Mohammad, Bharti Nagar. Naini, Allahabad as well as the household effects and ornaments kept therein, and also from obtaining any money payable by the Indian Telephone Industries, Naini, Allahabad or any money in deposit with the State Bank of India in the name of Mohammad Yasin, consequent on his death. On 2-8-1985, the petitioners filed the present petition. It is alleged that when the petitioners and their mother had gone to the house of opposite party No. 1 in village Barethi to join the last rites of Mohammad Yasin, the opposite parties began abusing the petitioners' mother and asked her to leave the house. She requested for permission to stay till the next morning but it was refused, and the opposite parties threatened that in case she continued to stay, they would burn her alive. She had to take shelter in a neighbouring house. On the next day, the neighbours tried to intervene but the opposite parties did not relent, and they detained the petitioners wrongfully. The petitioner's mother escaped with petitioners' brother, Sohrab, who was invalid by birth and was ill, and the opposite parties continued to detain the petitioners wrongfully.

(3.) In the counter-affidavit filed by the opposite party No. 1 it was alleged that Mohammad Yasin died on account of an assault which took place at the instance of Smt. Ishrat Bano, that Mohammad Yasin had divorced her on 22-4-1985, that Smt. Ishrat Bano wants to grab the property of Mohammad Yasin and the money payable to him from Indian Telephone Industries where he was employed, and also his bank account in the State Bank of India, Naini, Allahabad, that Smt. Ishrat Bano filed an application under Sec. 125, Criminal Procedure Code on 22-10-1984 (vide Annexure 2), that the opposite parties did not forcibly detain the petitioners ; and that the interest of the petitioners is safe in the custody of the opposite party No. 1. In the supplementary counter-affidavit filed on 29-8-1985 it was paid that opposite party No. 2, Smt. Khairunnisan, has filed a petition for the lawful custody of the petitioners under Guardian and Wards Act. Annexure 5 is the copy of the application which was sworn on 23-8-1985, i. e. after the filing of this petition.