SYED LIAQUAT HUSSAIN Vs. SUPERINTENDENT OF POLICE KURNOOL

JUDGEMENT

(1.) The petitioner Syed Liaquat Hussain, son of Syed Mohd. Yahiya filed this Writ of Habeas Corpus seeking custody of his minor boy aged about 5 months from his in-laws by contending that after the death of his wife he being the natural guardian of the son he is entitled to have the custody of the child. In support of his contention Mr. Md. Sherrif, the learned counsel for the petitioner vehemently contended that the Court cannot pass any orders in contravention of the tenets of the Mohammedan law and he placed strong reliance on Para 357 of the Mulla's Principles of Mohammedan Law which is an authenticated book on personal laws of the Muslims. It is necessary to extract para 357 of the book, which reads as under: 357. Right of father and paternal male relations to custody of boy over seven and of girl who has attained puberty: The father is entitled to the custody of a boy over seven years of age (u) and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given in Sec. 355 above, and subject to the proviso to that Section. If there be none of these, it is for the Court to appoint a guardian of the person of the minor.

(2.) From this it is evident that the father or the paternal relations of the boy are entitled to custody of the boy only after he completes 7 years and in case of girl after attaining puberty. In fact, Mr. Md. Sheriff, learned counsel for the petitioner do not know the fact that the Guardian and Wards Act also applies to Muslims wherein the custody of the minor Muslim child up to the age of 7 years shall be with the mother.

(3.) The question now that falls for consideration is whether when the mother died her parents are entitled for custody of the child. Para 353 deals with the custody of the minor children in the absence of the mother which reads as under: 353. Right of female relations in default of mother Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below: