ZAHIRUL HASSAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Out of the wedlock of Zahirul Hasan and Smt. Hasin Bano, a son was born. In January, 1987 the father forcibly took the child aged 1 years from the custody of the mother. The mother, therefore, moved an application under S. 97 of Cr. P. C. against the father. It is admitted case of the parties that relationship of husband and wife still subsists. During pendency of the said appliction before the Additional District Magistrate (City), Kanpur Nagar, an attempt for a compromise was made but the same failed. On a consideration of the entire facts of the case the Additional District Magistrate (City), Kanpur Nagar came to conclusion that the wife was legally competent to keep the child with her and the case was covered by the provisions of S. 97 of Cr. P. C. He also relied upon the concession made on behalf; of the husband that he has no objection in giving custody of the child to his mother. Therefore, the husband was directed to hand over the child to the mother in presence of the police and was further directed not to take away the child without due consent of the mother. The husband did not comply with the said directions of the Court. He, however, filed a revision against the said order which has also been dismissed by the VIII Additional Sessions Judge, Kanpur Nagar, vide an order, dt. 6-5-1987.

(2.) I have heard learned counsel appearing on behalf of the husband. The first submission raised by learned counsel for the applicant is that the father was, under facts of the case, guardian of the child and not the mother. The second submission is that the present case is not covered by the provisions of S. 97 of Cr. P. C. inasmuch as confinement of the child in the present case did not amount to an offence. Thirdly, it is contended that at any rate, the proper remedy of the wife in the present case was to move an application under the Guardians and Wards Act.

(3.) Let us now examine these contentions one by one. Under the Mohammedan Law mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years. This position continues even though she is divorced except in cases where she remarries. The word 'custody' is synonymous with guardianship. In the case of Imambandi v. Haji Musaddi, AIR 1918 PC 11, it was held that Hidaya and Fatwa Alamgiri are recognised as standard authorities in this country for Hanafi Sunnis. The following extracts are illustrative of the right of custody of the mother.