ZARABIBI Vs. ABDUL REZZAK NAKSHBANDI

JUDGEMENT

(1.) This is an application under Section 491 of the Criminal Procedure Code, corresponding in effect with a writ of Habeas Corpus, brought by Zarabibi, the mother of the two minor children, against their father Abdul Razzak.

(2.) The rule was issued on a petition under Section 491. The words of that section are " any of the High Courts of Judicature...may, whenever it thinks fit, direct that a person, illegally or improperly detained in public or private custody, be set at liberty or that any person within the limits &c. be brought before the Court to be dealt with according to law." There the guiding words of that section apparently come to an end but it is supplemented, I think, perhaps not altogether felicitously, by Rule 794 of the High Court Rules, which, being made under the Civil Procedure Code, have likewise the force of law. And while it appears by Section 491 to be left entirely to the discretion of the Court, whether it should or should not direct the person to be brought before it to be dealt with according to law, where the person has so been bought before it, Rule 794 appears to deprive the Court of all further discretion and commands that in the absence of cause being shown against the rule, which of course is a very different thing from allowing the Court to exercise its discretion, even where technically the cause is inadequate, the Court shall pass an order that the person or persons improperly detained shall be delivered to the person entitled to their custody. A comparison of Rule 794 with Section 491 seems to me to occasion more than one rather senior difficulty. The words which I have jus;; read from Rule 794 set Jo be strictly speaking applicable only to Clause (-) of Section 491, although in the present case they are sought to be applied to Clause (a). Now while Clause (a) does appear to require amplification, Clause (b)of Section 491 seems to require none, because as it stands, the Court already has an indication of the order which it is expected to pass, whereas, as I have pointed out, Clause (a) leaves the Court at the stage of having the person brought before it to be dealt with according to law, and to be dealt with according to law is a phrase of such wide and general meaning that it is fairly open to many constructions.

(3.) I confess the points, which have been raised in the argument of this Rule, have occasioned me very great anxiety, not because of their intrinsic difficulty so much as because of the fact that the well-being of the two small minor children must necessarily much depend upon the order which I shall have to make. This is indeed a very unfortunate squabble between the husband and the wife. The more important facts are that indisputably the husband has been living apart from his wife, although in his affidavit he denies desertion, and that he has been living so quite apart from her for a great many years. In her affidavit the wife declares that these children had never even seen their father, meaning that he had deserted her so long ago that if the eldest child had already been born, he was not of an age to recognize or know his father. On the 17 of July of the present year, that is less than two months ago, the father met these children out walking and according to the mother forcibly carried them off. According to himself they ran to him, entered his carriage and went with him of their own accord. Since then they have remained in the father's custody and the mother seeks an order of the Court under a writ of Habeas Corpus, directing the restoration of the children to her. The children have been produced in obedience to the order of the Court and they present every appearance of well being. They are neatly dressed, apparently excellently fed, and look well and happy. They are very young and although the expression of their own wishes carries very little weight, (they naturally incline favourably to the person who last treated them with perhaps more than common kindness) it is not altogether surprising when the Court asked them whether they wished to return to their father or their mother, they both said that they desired to return to their father. If I was(sic) perfectly certain that the same kind treatment and careful te(sic) would be given them in the future, I should be even more disposed than I have been throughout this argument, to give less than full effect to what seems to me to be a too narrowly expressed rule of law. But it is of course barely possible that the father, knowing that the mother contemplated obtaining a writ of Habeas Corpus against him, may have been particularly careful in seeing that the children, when they came to Court, created a favourable impression. However that may be, merely upon the general merits of the case, apart from the law involved in it, we have these little boys both under seven years of age, for, I think, that the opponent, having regard to the date he gives of the marriage, cannot seriously contend that the eldest boy is yet quite seven years, of age, I say these two little children having lived the whole of their lives with their mother up to the 17 of July last and for about a month and a half only with their father, much of the credit then for their happy and well tended appearance should at any rate, I think, be given to the mother, for it is quite impossible that if they had not been fairly well looked after they could have been so much improved in so short a time. On the other hand, it is strenuously contended for the opponent that if not wealthy, he is in much easier circumstances than the mother and that if the Court looks only at the welfare of the minors, it certainly would not take them from him nor restore them to her. For, it is said, she is living with her own father and mother who are virtually paupers and that whatever means the family have existed upon for the last seven or eight years, have been drawn from the opponent the father.