SHERBANOO Vs. AJBAI

JUDGEMENT

(1.) On the 5 instant, the petitioner, Sherbanoo, through her counsel, obtained a rule nisi in the nature of a writ of habeas corpus, calling upon Ajbai and Ludhabhai Hussam to appear and show cause why they should not deliver up the minor Ebrahim, alleged to be improperly detained by them, to the petitioner. This rule was argued before me on the 12 instant, when the respondents who appeared by counsel submitted certain considerations to the Court.

(2.) Mahomedbhai Hassam, a Shiah Mahomedan, died on the 27 of November 1908, leaving, him surviving, the petitioner, his widow, and a minor son named Ebrahim. This minor was born on the 12 of July 1903, and is now about five years and four months old. The respondent Ajbai is the grand-mother of the deceased Mahomedbhai and the respondent Ludhabhai is his brother. The deceased, at the time of his death, was living with his minor son, with the respondents. The petitioner was not living with her husband for about two years previous to his death. After Mahomodbhai's death, the minor Ebrahim remained with the respondents. The petitioner, claiming to be entitled to the custody of the minor as his mother, called upon the respondents, by her attorneys letter of the 30 of November 1908, to hand over her minor son to her. The respondents through their attorneys declined to comply with her requisition stating the deceased had left a Will, whereby he had appointed his brother Ludhabhai one of the executors thereof and directed that their client Ludhabhai should keep his son Ebrahim with him.

(3.) On this refusal, the petitioner, Sherbanoo, applied for a rule under Section 491 of the Criminal Procedure Code. On this rule several affidavits were filed but while some of them were being read, counsel for the petitioner and respondents agreed to restrict the discussion to the bare legal question, as to who was entitled to the custody of the minor and it was further agreed that the determination of the question should proceed on the assumption that if the petitioner was in law entitled to the custody of her minor son, there was nothing to disentitle her to such custody. The petitioner bases her claim on the fact that she is the minor's natural mother and as such entitled to the custody of the minor. The respondent Ludhabhai annexes to his affidavit a copy of translation of his brother's Will and claims that under Clause 4 thereof he is entitled to retain custody of the minor son of the testator. The petitioner replies that the Will gives him no such right.