MUNIRA MOHAMED ALI Vs. MOHAMED YASIN MOHAMED

JUDGEMENT

(1.) The petitioner is wife of Respondent No. 1. They were married on 10.5.1979 at Bombay. The petitioner went to village Taloja, Taluka: Panvel, District: Raigad and started Having with the Respondent No. 1. For few months. they lived happily but thereafter, the relations became strained. It is alleged that after about eight months, Respondent No. 1 started harassing the petitioner and some times even assaulted her at the instance of his parents. The petitioner gave birth to a female child on 11.12.1980 at Cama Hospital, Bombay, who was named asn Yasmin. After the delivery, the petitioner stayed with her mother for about 4 to 5 months and thereafter, she was taken to Taloja by the Respondent No 1. According to the petitioner, on or about 17th April 1981, her brother visited Taloja to invite her for marriage in the family. At that time, the Respondent No. 1 did not allow the petitioner to accompany ber brother and instead asked him to come to Taloja on or about not or II th May 1981 to take his sister to Bombay. Accordingly, the petitioners brother came back to Bombay and again went to Taloja on 11th May 1981 and requested the Respondent No. 1 to allow petitioner to accompany him to Bombay. It appears that Respondent No. 1 allowed the petitioner to accompany her brother with great reluctance. The petitioner came to Bombay along with her daughter Yasmine

(2.) There is no dispute that on 7th of April, 1984, both the parties entered into a settlement known as Khullanama and finally parted with each other. It is not necessary to give the details of the settlement. However, it may be pointed out that according to the settlement, the Respondent No. 1 paid an amount of Rs. 5,000/-as Moher to the petitioner and the petitioner waived the remaining amount of her Moher. It also appears that the petitioner was paid an amount of Rs. 4,500/-as maintenance to the petitioner and her child till the date of divorce. It also appears that under the terms of Khullanama, the daughter Yasrnin was handed over to the Respondent No. 1 and on this condition alone he agreed to give Dehaj Articles to the petitioner. According to the petitioner, it was agreed that Respondent No. 1 would make-it possible for the petitioner to meet her daughter periodically. There is no dispute that the daughter Yasmin is in the custody of Respondent No. I ever since this arrangement was entered into on 7.4.1984. According to the petitioner, she could not meet her daughter ever since she was taken away by the Respondent No. 1. It is alleged that the Respondent No. 1 is not interested in the upkeep and the well being of the minor child. According to her it is not in the interest of the minor to remain in the custody of Respondent No. 1. She has asserted that under the Muslim Law, it is she who is entitled to the custody of the minor daughter till she attains puberty. It is under these circumstances, that she has filed this petition. The Respondent No. 1 filed his return by way of counter affidavit. According to him, he is the natural guardian of the minor Yasmin and that he is lawfully in custody of the minor. According to him, he is having the custody of the minor child under the Khullanama and he has absolute right to continue to have the custody of the minor under the terms of Khullanama. According to him, the petitioner should file a regular suit under the provisions of the Guardian and Wards Act for the custody of the minor child. According to him, the petitioner is a mentally deranged woman and therefore, it would not be in the interest of the child to hand over her custody to the petitioner. Petitioner has filed an additional affidavit on 27.9.1981. In this affidavit she has denied that she is mentally deranged woman. According to her, the Respondent No. 1 has made scandalous allegations against her family members and the same are baseless. According to her she was shocked to know that the Respondent No. 1 had already married once and that he divorced his first wife on filmsy grounds. This incident had made her nervous and she fell ill and was treated. She also came to know that he had developed illicit relations with one young girl from another community. The petitioner has placed one more affidavit dated 1.10.1984 on record. In this affidavit she has given the details as to how it would be in the best interest of the minor to remain with the petitioner. According to her, she is residing with her mother and brother in Bombay. Her brother is employed in a private firm as a Clerk and is also doing part time teaching. His total monthly income is about Rs. 1,500/-. She has further stated that her mother bas a shop of tin work at Dhanji Street, Bombay from where she gets monthly income of Rs. 1,000/-. She has further stated that she is doing tailoring work and earns Rs. 600/-to Rs. 700/-per month. According to her, Respondent No. 1 bas no independent source of income and he is entirely depending on his father. She has further asserted that there are no good educational facilities at Taloja which is a small village whereas, there are best educational facilities at Bombay. Respondent No. 1 has also filed another affidavit and denied the contents of the two affidavits filed by the petitioner referred to supra. This affidavit has been filed by the father of the Respondent No. 1. In this affidavit again, it is asserted that the petitioner is a mentally deranged woman and that her case is a chronic one so much so that the psychiatrist under whose treatment she was kept had advised them to get her admitted in a nursing home.

(3.) In our view, the only question that really falls for determination is the welfare of the minor child. Shri Maniyar the learned Counsel appearing for the Respondent No. 1 has submitted that this Court has no jurisdiction to issue a writ of Hubeas Corpus in the facts and circumstances of the case. According to him, this is not a case where it can be said that the custody of the child with Respondent No. 1 is illegal. He has submitted that the petitioner herself banded over the minor cbild to the Respondent No. 1 under the terms of Khullanama and therefore, the Respondent No. 1 cannot be said to be in illegal custody of the minor child. According to Shri Maniyar, the petitioner must challenge the Deed of Khullanama by way of regular suit and establish her right to the custody of the minor.