MT HAIDRI BEGUM Vs. JAWWAD ALI SHAH

JUDGEMENT

(1.) This is an application under Clause 12, Letters Patent, praying that the applicant may be appointed guardian of the person of the minor Mazhar Ali Shah and that the opposite party may be ordered to produce him before the Court, and that the Court may be pleased to order the delivery of the minor to the applicant.

(2.) The application arises out of the following facts : On 20 January 1928 the applicant Mt. Haidari Begum was married to the opposite party Syed Jawad Ali Shah. There was one child of the marriage, namely, Mazhar Ali Shah, who was born on 18 September 1928. The parties went to Europe in 1932 and after returning to India they were living at the house of Section Jawad Ali Shah in Gorakhpur in July 1933. On the 29 of July 1933 the applicant went to Lucknow to visit her parents. She went by the night train and as it was represented to her that there might be risk in sending the child by the train at night she left the child behind with her husband on the understanding that he would follow on the next day bringing the child with him to Lucknow. Her husband did not bring the child to Lucknow, as arranged. A few days later, the applicant received a letter dated 2nd August 1933 from her husband stating that he had divorced her. She then asked for the personal custody (Hizanat) of the child but her husband refused to give him up. She has therefore made this application under Clause 12, Letters Patent, as mentioned above.

(3.) It has been conceded that this Court has jurisdiction to grant the reliefs prayed under Clause 12, Letters Patent. It is unnecessary for us to consider exactly how far the jurisdiction of this High Court extends under Clause 12, as it is conceded that this Court has at least jurisdiction to grant the reliefs prayed. It has been argued however for the opposite party that this Court ought not, in the exercise of its discretion, to take action under Clause 12, as the applicant's more appropriate remedy would be to make an application to the District Judge, under Section 9, Guardians and Wards Act, 1890, for the guardianship of the child. It is contended that in the Court of the District Judge witnesses would be examined and cross-examined and so the facts could be more easily ascertained, whereas it is inconvenient to decide a matter of this sort in this Court merely on the basis of the affidavits and counter-affidavits that have been filed. There is no doubt some force in this contention, but in the circumstances of this case we think there is no reason why we should not exercise jurisdiction admittedly vested in us. Cases have been cited in which the High Court has decided similar applications upon the merits, although an alternative remedy was open to the applicant in the Court of the District Judge. We would refer to the case of Ellen Ramm V/s. Charles Spencer (1905) 2 A.L.J. 81 and that of Nursi Tokersey and Co. V/s. Sachindra Nath A.I.R. 1929 Bom. 475. We do not wish to lay down as a general rule that this Court should in all cases take action under Clause 12, although the applicant has an alternative remedy under the Guardians and Wards Act, by an application to the District Judge. There may be cases in which complicated questions of fact have to be ascertained and such cases might be more suitably dealt with in the Court of the District Judge where witnesses could be examined and cross-examined. In the present case however it does not appear that there are any important matters of fact which have to be ascertained and we therefore see no reason why we should not decide the application upon the materials before us.