ARSH MOHD. Vs. AJMAL

JUDGEMENT

(1.) (Smt.) Mehtab Fatima has presented this petition for a writ of habeas corpus under Article 226 of the Constitution of India praying for production of the petitioners (i) Arsh Mohammad, (ii) Mohd Zainul Abdin, (iii) Khalikuzzama and (iv) Sammo who are stated to be her sons born out of her wedlock with Mohammad Ajmal, respondent No. 1. It has been, inter alia, stated that Smt. Mehtab Fatima had been married to the respondent No. 1. Mohd Ajmal and these four petitioners were born out of that wedlock. Respondents 2 and 3 are father and mother respectively of the respondent No. 1. The four children who are the petitioners and on whose behalf the writ of habeas corpus has been filed are at the moment living with their father, Mohammad Ajmal and the respondents 2 and 3, the grand parents of the petitioner. The parties are Hanafi Muslims and they are governed by the law governing the said class of Muslims. The grounds urged on behalf of the petitioners by the learned counsel appearing for the petitioners were three fold. Firstly it was urged that according to Hanafi law the guardianship of persons ("Hizanat") and duration of minority has been categorised in two stages; firstly the stage since the birth of the child till he completes the age of 7 years and secondly the stage which starts from the completion of 7 years till the termination of minority. It has been stated by Tahir Mohamood in his "Muslim Law of India" 1980 Edition at page 170 that "during the first stage the Hizanat of the minor belongs primarily to the mothers. "At the commencement of the second stage it passes to his father". It has been contended by the learned counsel that in view of the fact that all the four minor children are in the first stage and it is the mother who is legally entitled to the custody of the children. I do not find force in this contention in as much as the words used in the commentary are that the Hizanat of the minor belongs primarily to his mother. The word "primarily" is not a word which can be said to be of no consequence and it connotes unequivocally that in the ordinary circumstances the custody of the minor in the first stage should be given to the mother since the mother is supposed to be more attached to the minor children who have not attained the age of 7 years. Speaking otherwise there is no rule of law that enjoins the custody of the children to be delivered to the mother in all eventualities. If that had been the intention the word 'primarily' would not have been used.

(2.) THE second contention is that the four children who were in the custody of the father and their grand parents were not happy. In pursuance to the directions of this Court the children were produced before an Hon'ble Judge of this Court on 4 -2 -1986 and a perusal of the order -sheet shows as under:

(3.) A Full Bench of this Court in Habeas Corpus Writ Petition No. 3264 of 1980 Iqbal Ahmad v. Shabban Ali Khan and others : 1985(11) A.L.R. 526, held that "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: (i) R. V. Green Hill, (1836) 4 - -and E. 624 and Stevension v. Florent, 1925 S.C.R. 522". Their Lordships of the Full Bench were dealing with a case under Mohammedan Law amongst Sunnis (Hanafi Muslims) and custody of the male child was under consideration. The Court ultimately held: