S. REHAN FATIMA Vs. SYED BADINUDIN PARIVIZ

JUDGEMENT

(1.) THIS petition for the issue of a writ of Habeas Corpus has been filed by the mother S. Rehan Fatima alias Syeda Rana Parviz for the custody of her 3 1/2 year old minor son Syed Wasim Hussain alias Shaher Yar; hereinafter referred to as 'Shaher Yar' for brevity. The petitioner and the respondent were married on 15 -10 -77 and the marriage was solemnized according to the principles of Mohammadan Law. The respondent -husband who is now having the custody of the child is working as a Lab Technician in the Central Research Institute for Unani and Homoeopathic Medicine, A.C. Guards, Hyderabad. It seems that after the marriage, the petitioner and her husband lived together happily in her father -in -law's house in Sha Ali Banda, Hyderabad till August, 1979. The offspring of the marriage is the son Shaher Yar who was born on 24 -9 -1979, and is now the subject of controversy for custody between his estranged parents. After the birth of the child, the husband took the wife to a rented house bearing No. 3.5.365 at Syed Ali Chebutra, Hyderabad. The wife alleges that the husband was addicted to vices like drinking and playing cards for which she used to protest and the landlord also asked her husband to vacate the house. He vacated the said premises and took another house bearing number 23.5.116 in the same locality. In fact, the couple, along with the child, were living in this house till the fateful night of 8 -4 -1983 when, the petitioner claims, she was driven out of the house by the husband at about 11.30 p.m. The petitioner shifted to her parents' house number 22.7.500/2 at Purani Haveli, Hyderabad and is said to be living with her parents along with her brothers and sisters. The case of the petitioner is that while she was forcibly driven out of the house on 8 -4 -1983 at the dead of night, she was not allowed to take her 31/2 years old son along with her by her husband. The father of the petitioner also tried to intervene and get the custody of the child on her behalf, but his request was also turned down. The petitioner states that her son's health is deteriorating due to lack of proper food and clothing and maternal affection and that the respondent is forced to leave the child at different places with his friends when he goes out for work which has resulted in a very disjointed and chaotic life for the child. Her claim is that under Mohammadan Law and also under Ss. 7 and 25 of the Guardians and Wards Act 7 of 1980 (8 of 1890) she is legally entitled to the custody of the minor child. Therefore, she has filed this writ petition with the prayer that this Court may issue a writ of habeas corpus directing the respondent to hand over the custody of the child to her. In the counter affidavit filed in this case, the respondent admits that he married the petitioner on 15 -10 -1977 and has been living with her for the past six years till the date of dissolution of their marriage. He admits that Shaher Yar is their son born on 24 -9 -1979, but denies the allegation of his addiction to vices like drinking and gambling. It is further alleged in the counter affidavit that his wife, the petitioner, has been unfaithful to him and has executed a "Khulanama" on 8 -4 -1983 resulting in the dissolution of the marriage between the parties. He further states that the petitioner also gave a declaration on the same day i.e., 8 -4 -1983 authorising the respondent to keep the minor son with him. The respondent says that his son is living with him in his parents' house and is being looked after properly by his paternal grandmother. The respondent has further conceded in his counter affidavit that under the Mohammadan law applicable to the Hanafi sect of Muslims, a mother is legally entitled to the custody of her son until he completes the age of seven years, but that is not an absolute right and a writ of Habeas Corpus cannot be issued in such circumstances. The petitioner has filed a reply affidavit controverting the allegations contained in the counter affidavit of the respondent in which it is stated that the Khulanama dated 8 -4 -1983 was executed by her under the threat of death administered to her by the respondent. She states that the respondent forced her to write in Urdu the text of the Khulanama and took her signature on some other stamp papers. She reiterates her earlier stand that the respondent is not living in the house of his parents but is living separately in a different locality.

(2.) THE respondent herein has filed a copy of the Khulanama dated 8 -4 -1983 said to have been executed by the petitioner in which it is stated that she was giving her free consent to the divorce and has also relinquished the dower amount of Rs. 5,000/ - voluntarily. It is significant to note that there is no mention about the custody of the minor in the terms of the Khulanama. The only thing mentioned in it is that the tie of marriage has been dissolved and that the parties ceased to be husband and wife in the eye of law. However on the same date i.e., 8 -4 -1983 a separate deed of declaration is said to have been executed by the petitioner in which it is stated that she has authorised her husband to look after her son Shaher Yar as she intends to remarry some other person and cannot look after the boy. The Khulanama was presented before the qezath hariat Panah Balda, Hyderabad on 7 -6 -1983 and a divorce certificate of the same date was obtained from the said office. During the hearing of the case a doubt had arisen about the sect of Muslims to which the petitioner and the respondent belong as that would affect the custody of the child under the Mohammadan law. On this aspect of the matter, the petitioner has filed an additional affidavit stating that she belongs to Shia sect of Muslims, but that the respondent is a Sunni who is governed by the law applicable to the Hanafi sect. It is further stated that the marriage was performed on 15 -10 -1977, according to the principles applicable to the Hanafi sect of Muslims. After the marriage, she claims to be governed by the law applicable to the Hanafi sect to which her husband belongs. In the additional counter affidavit filed by the respondent it is admitted that he belongs to the Sunni sect of Muslims but it is contended that the petitioner is a Shia by birth and continues to be particularly after execution of the Khulanama by which the tie of marriage has been dissolved.

(3.) THE law is well -settled on the point that in deciding the question of custody of a minor, the welfare of the minor is of paramount importance. It is not possible to lay down any hard and fast rule governing the determination of the question about the welfare of a minor and each case to be decided on its own facts and circumstances. This principle has been affirmed by the Supreme Court in Veena Kapoor v. Varinder Kumar, : AIR 1982 SC 792. The case before the Supreme Court pertained to the rival claims of the estranged parents for the custody of their 11/2 years old child. Having regard to the circumstances of that case, the Supreme Court directed the District Judge, Chandigarh to make a report to the Supreme Court after recording evidence on the question as to whether it would be in the interest of the minor to hand over its custody to its mother or father, as the case may be. Keeping in view the overall consideration of the welfare of the minor, we have interviewed the petitioner the respondent and also the paternal and maternal grandmothers of the child. We have had an occasion to talk to the child also. In the course of the detailed interview we had with the parties, we observed that the boy aged 31/2 years is clever enough to give an indication of his mind. No doubt in the beginning when he was sitting on the lap of his father, he refused to go to his mother saying that if he goes over to her, she will beat him. On being questioned by the mother as to who told him that she would beat him if he comers to her, the boy immediately replied that it was his father who told him that he should not go to his mother and that if he goes to her, she would beat him with a stick. After sometime, the petitioner took the child and made him sit on her lap. The mother was perceptible on this occasion as he tried to hug his mother and gave an impression that he would not like to be separated from her. The earlier utterances of the child that he would not like to go to his mother for the reason that if he goes to her, she would beat him or that his father has promised to give him a chocolate are clearly the result of the tutoring of the child by the father. The behavior of the child has given an impression that his mental and health is likely to be impaired if he is deprived of the love and affection of his mother. Apart from this, another important circumstance worthy of notice is that on being questioned by the Court, the respondent has stated that he is already receiving several proposals for marriage and that he is going to get married very soon. The petitioner however said that she has no intention whatsoever of getting married a second time and that she intends to devote her whole life for the upbringing of her son. If the respondent -father takes a second wife, as he says he is definitely going to get married very soon, it would be difficult to visualise that the minor son would be better looked after by the father rather than the real mother who has stated categorically that she does not intend to remarry and that her only object in life is to give single minded devotion to the welfare and upkeep of the minor son. For the foregoing reasons, we do not deem necessary to call for a report from lower Court directing it to record evidence on the question of the custody of the minor from the standpoint of the welfare of the minor. It is pertinent to note that nothing has been alleged by the respondent against the petitioner which would disentitle her to have the custody of the minor. No neglect or indifference towards the child on the part of the petitioner at any stage has been alleged by the respondent.