MUSAMMAT HAYDARI BEGUM Vs. SYED JAWAD ALI SHAH

JUDGEMENT

(1.) This -is an application under Section 491 of the Criminal P. C.. The applicant, Musammat Haidari Begum, prays that, on the grounds stated in her affidavit, this Court may be pleased to pass an order directing the opposite party (namely S. Jawad Ali Shah, the applicant's husband) to produce before the court the minor, Section Mazhar Ali Shah, at an early date and that thereupon the child may be delivered to the applicant. For the purpose of disposing of this application we need only state the salient facts very briefly. Syed Jawad Ali Shah was married in 1928 to the applicant. They had a son, Section Mazhar Ali Shah, whose age is now about 4f years. In July, 1933, the applicant was living with her husband and the child at Gorakhpur. On July 30, she left Gorakhpur for Lucknow in order to attend a ceremony at her parents house. She left Gorakhpur by the night train. On her husband's advice she left the child with her husband, to avoid the risks of a night journey on the understanding that her husband would follow her with the child next day. Her husband did not follow her, but sent her a registered letter dated August 2, 1933, stating that he had divorced her. The applicant served a notice upon her husband demanding the custody of the child, but her husband refused to surrender the child, claiming that he himself is entitled to his custody: hence the applicant made an application to the High Court under Section 491 of the Criminal P. C. on the 20 of this month That application was heard by a learned single Judge, Mr. Justice Bennet, who rejected it on certain grounds which we need not set forth. The applicant then made a second application, on the very same day, namely, the present application to the same effect and with the same object, to one of us, praying for the very same relief which had been refused by Mr. Justice Bennet. As the questions of law and procedure raised by the second application seemed to be of some difficulty and importance, it was ordered that the application should be heard by a Bench of two Judges.

(2.) As this second application has been presented ex parte we have not had the benefit of hearing any arguments on behalf of the opposite party or of the Crown.

(3.) The first question to be decided is whether this second application is maintainable, in view of the fact that a previous application to the same effect and with the same object has been rejected by a learned single Judge of this Court.