SULTAN SINGH Vs. BMAYA RAM RADHA SWAMI

JUDGEMENT

(1.) THE applicant Sultan Singh is father of two minor sons and the opposite party Maya Ram is father of the applicant. THE minor boys are at present under the charge of Maya Ram. THEy have been, according to the applicant's own affidavit, under the charge of Maya Ram since 1925. This application is made for a direction of the nature of a habeas corpus under Section 491(1)(b), Criminal P.C. That section gives power to this Court whenever it thinks fit to direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction may be set at liberty. In the very nature of things the power would be exorcised in matters of urgency, where, for instance, the father is suddenly deprived of the custody of his sons and there is danger to the life of the sons in the transferred custody. It is stated in Wharton's Law Lexicon that this, the most celebrated prerogative writ in the English Law, is a remedy for a person deprived of his liberty. THE power, therefore, has to be exercised by this Court with caution and not in a case where there is a dispute merely as to who should be guardian of particular minors. In the present case the applicant has permitted his sons to be in the custody of their grandfather for four years and this application is merely a cheap way in which he desires to establish his guardianship over the boys. It further appears that even prior to 1925 the boys were living with Maya Ram. Such a statement has been made in an affidavit of Maya Ram and not bean denied by a counter-affidavit filed by Sultan Singh. THE case, therefore, clearly is not one of urgency. THEre may be some difference of opinion between High Courts as to whether a suit should lie in case of Sultan Singh never before having been in charge of his boys, or whether Section 25, Guardians and Wards Act would be applicable: see Achratlal V/s. Chimanlal [1916] 40 Bom. 600 and Sukhdeo Rai V/s. Ram Chandar Rai A.I.R. 1924 All. 622. However that may be, a civil remedy is open to the applicant wherein a District Court or a civil Court may fully inquire as to whose custody would be most beneficial to the sons. This Court is not the Court for such an inquiry. THEre is no cause so far as can be made out from the affidavits for interference. I dismiss the application.