AFSAR JAHAN Vs. MAHMMAD HALIM

JUDGEMENT

(1.) This is an application for a writ in the nature of habeas corpus.

(2.) The present petitioner is the maternal grand-mother of the victim namely Shabina Fatima, who according to the petitioner is above 7 years of age. It is the case of the petitioner that her daughter was married to the present respondent and out of the wedlock, a female child was born on 10.9.94. The petitioner daughter i.e. the wife of the present respondent died on 2.4.2000. It is the further case of the petitioner that since birth, the said Shabina Fatima, grand daughter of the present petitioner was in her custody. It is further stated in the petition that on 19.1.2001 the respondent/father of the female child visited the house of the petitioner and took away the said female child from the custody of the present petitioner on the plea that her grand father was seriously ill. It is further alleged that since then the female child is remaining in the custody of the present respondent and inspite of repeated request, she has not been handed over to the custody of the present petitioner although the petitioner is legally entitled to the custody of the said female child. It is further stated in the petition that the petitioner also made a complaint to the Officer-in-charge of Kereya Police Station alleging such a wrongful conferment of the female child by the present respondent.

(3.) It is not disputed that the present respondent namely Md. Halim is the father of the female child. It is the contention of the petitioner that under the Mohammedan Law the custody of the child should be with the present petitioner after the death of her mother. The present petitioner is the maternal grandmother of the female child. In support of his contention, the learned Advocate appearing for the petitioner relied on judgment of the Hon'ble Supreme Court reported in Gohar Begum v. Suggi @ Nazma Begum & others, 1960 AIR(SC) 93. The learned Advocate relying upon the said judgment submits that alternative remedy available to a person cannot stand in the way of moving a petition for habeas corpus for an illegal detention of a person. In the judgment referred to above it was held by the Hon'ble Apex Court that although the appellant had a remedy under the Guardian and Wards Act for recovering the custody of the child, she had also a clear right to an order for the custody of the child under Section 491, Cr.P.C. (old Code). It is the submission of the petitioner's learned Advocate that the High Court has jurisdiction to issue a writ of habeas corpus even against a private person. It is clear from the judgment referred to above that there was an application under Section 491, Cr.P.C. (old Code) and not under Article 226 of the Constitution of India. So, in our considered view, the judgment referred to by the learned Advocate appearing for the petitioner is not at all applicable in the present case.