MUMTAZ BEGUM Vs. MUBARAK HUSSAIN

JUDGEMENT

(1.) Pappu is a sweet child, aged about four years, living today with his father. His mother has petitioned this Court for a writ of habeas corpus, claiming custody of the boy. Parties appeared before us and we heard them in camera. Their statements were also recorded. We also tried to talk to the child in camera in the absence of counsel and parties. We reserved order, because we considered it a fit case to be deliberated unfit for instant decision.

(2.) We confess, we saw light in Veena Kapoor, (AIR 1982 SC 792) and Mohini illumining for us the path so that we could avoid bricks and breaches. Light also came to us from Shah Bano and Jorden Dienadeh. Petitioner's counsel, Shri Apte, relied on Gohar Begam, (AIR 1960 SC 93), while Shri A. B. Mishra, appearing for the respondent, relied on two decisions of Allahabad High Court, to which we would advert in due course. Directive Principles of the Constitution, as also emerging international norms of Human Right jurisprudence must inform our vision of law. We looked, therefore, into the Declaration of the Rights of The Child, 1959, adopted unanimously by the United Nations General Assembly. We have tried to heed the mandate of Art. 51(c) and clauses (e) and (f) of Art. 39 of the Constitution, indeed without ignoring counsels' reliance on passages from Mulla's Principles of Mahomedan Law, read out to us.

(3.) First, few facts. Mubarak Hussain alias Bhaiyee, the child's father, who, it appears from the material on record, once had his own carpentry shop, wherein work of building bodies of trucks and buses used to be undertaken. However, for last several years, is working on wages as a carpenter, though there is some dispute about the corpus of his earning. Before he married Pappu's mother Mumtaz begum, he had another wife, but she deserted him. The second marriage he contacted sometime in 1980 with the petitioner. Pappu was born of the wedlock and three months later the parents parted company. The husband, however, admits that he has contacted third marriage and a child is now born of that wedlock. What we further find from his evidence in this Court and in the Court below is that he lives in a joint family, with his parents and his other brothers, their wives and their children. Pappu is looked after by his sisters-in-law. His aged father is wholly blind and his mother is also aged and infirm. In this Court as also in the Court below, the stand taken by him, indeed in his evidence itself, is that because he has spent money for the upbringing of the child for the last three years or more, he would not like to part with custody of the child. He admits in his evidence that he leaves home for work at 9.00 in the morning and comes back at 9.30 in the night. He has admitted that the petitioner's father is a teacher at Bhopal, in Government service, . but he has refuted in this Court petitioner's contention that she and her mother also earn Rs. 400/- to 500/- per month. In the Court below, he gave evidence that the petitioner earns her livelihood by "working on saries" though, in this Court, he denied the statement. Although he took the stand that the petitioner was living with her sister's husband, we found little material to support this contention because he himself admitted in his evidence in this Court that her sister is alive and she lives with her husband.