IMTIAZ BANO Vs. MASOOD AHMAD JAFRI

JUDGEMENT

(1.) THIS Habeas Corpus petition is by Smt. Imtiaz Bano claiming custody of her two infant sons from Masood Ahmad Jafri and his parents Shafiq Ahmad and Smt. Balun.

(2.) THE admitted facts are that the contesting parties are Mohammedans governed by the Hanafi Law. Petitioner Smt. Imtiaz Bano was married to Masood Ahmad Jafri, respondent No. 1, on 14th July, 1967 and out of this wedlock three sons were born to them. THE youngest son died, but the other two sons, namely, Tariq Shafiq and Tahir Shafiq born on 1-12-73 and 21-12-75, respectively, are alive and at the time of the filing of this petition they were aged about 5 and 3 years, respectively. THE relations: between the husband Masood Ahmad Jafri and his wife Smt. imtiaz Bano got strained and the petitioner Smt. Imtiaz Bano has been divorced by Masood Ahmad Jafri, respondent No. 1 who has taken a second wife. THE assertion of the second marriage by Masood Ahmad Jafri as contained in paragraph 17 of the affidavit of Smt. Imtiaz Bano has not been specifically denied by Masood Ahmad Jafri in his counter-affidavit and in paragraph 16 of the counter-affidavit a vain effort has been made to deny specifically the fact of second marriage. However, Sri M. A. Qadeer, learned counsel for Masood Ahmad Jafri respondent on a specific querry by the Court has made a statement in Court during the course of his arguments that Masood Ahmad Jafri has in fact married another woman. This specific denial or admission of second marriage was essential in order to determine the question of entrusting the custody of the two infant sons in the anxiety of the Court to guard their welfare,

(3.) SRI M. A. Qadeer, learned counsel in support of his preliminary objection about the non-maintainability of the present habeas corpus petition has relied upon sub-clause (3) of Article 226 of the Constitution of India as amended by the 42nd Amendment Act of 1976. Sub-clause (3) of Article 226 at amended is as under :- "No petition for the redress of any injury referred to in sub-clause (b) or sub-clause (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force." According to SRI M. A. Qadeer, learned counsel, remedy under the provisions of Guardian and Wards Act is available to the petitioner who had not exhausted the same and therefore she is not entitled to claim the custody of her two infant sons by this habeas corpus petition in view of the bar of sub-clause (3) of Article 226 of the Constitution. On a cursory reading of Article 226, subclause (3), the preliminary objection of the learned counsel appears prima facie correct, but on a second thought over the emphasis on the words used in subclause (3) "if any other remedy for such redress is provided", it is obvious that in the circumstances of this particular case this objection of the learned counsel cannot prevail.