Allowed

Sahil (Minor) and Another v. State of U.P. and 3 Others

Allahabad HC3 Sept 2020HABC/387/2020

Case brief

AI extract

What is this about?

Mother of a minor boy aged under four years sought habeas corpus for his custody from the paternal grandfather after her husband's death. Rejecting the preliminary objection that she must go under the Guardians and Wards Act, the Court held the writ maintainable and found the child's welfare better secured with the mother.

What did the court decide?

Habeas corpus writ petition allowed; rule nisi made absolute and the minor Sahil ordered to be handed over forthwith to petitioner no.2, his mother, with monthly visitation rights to respondent no.4.

Sahil (Minor) and Another Vs State of U.P… — Child Custody and Guardianship | Allahabad HC (2020)

Court No. - 66

A.F.R.

Case :- HABEAS CORPUS WRIT PETITION No. - 387 of 2020

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Petitioner :- Sahil (Minor) And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashutosh Kumar Pandey Counsel for Respondent :- G.A.

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Hon'ble J.J. Munir,J.

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This Habeas Corpus Writ Petition has been effectively filed by the second petitioner, Rehana Bano, asking that the first petitioner, Sahil, her minor son, aged a little less than four years, be ordered to be produced before the Court from the unlawful custody of respondent no.4, Abdul Sohrab, the minor’s grandfather and liberated from the said custody, ordering him to be placed in his mother’s custody.

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Heard Sri Ashutosh Kumar Pandey, learned Counsel for the petitioners and Sri Indrajeet Singh, learned A.G.A. appearing on behalf of the State.

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Respondent no.4, Abdul Sohrab appeared in person, but did not file a counter affidavit. He produced the minor, Sahil in compliance with the rule nisi issued by this Court.

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The case of the second petitioners is that she was married according to Muslim rites on 15.05.2013 to the late Amjad Khan son of Sohrab Khan, respondent no.4. After solemnization of marriage, she cohabited with her husband, discharging her conjugal obligations. It is asserted that on 28.10.2016, the minor detenue, Sahil was born of the wedlock of parties. The second petitioner’s deceased husband, Amjad Khan got the name of their newly born son registered with the competent Authority, under the Registration of Births and Deaths Act, 1989 on 28.10.2016. The certificate of birth was issued on 13.12.2016. That certificate is on record as Annexure no.1 to this petition.

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It is averred by the second petitioner that by ill-fate, she lost her husband, Amjad Khan on 08.02.2017. Once widowed, she faced

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a barrage of physical and mental harassment, besides torture at the hands of her in-laws, including respondent no.4. It is averred in paragraph no.6 that respondent no.4 would not be content with illtreating his daughter-in-law, the second petitioner; he would beat up the first petitioner, the second petitioner’s minor son. It is the second petitioner’s case that on 05.09.2019 at about 7 O’ clock in the morning, she was thrown out from her matrimonial home by the fourth respondent, acting in concert with the other in-laws, who beat her up and relieved her of her jewelry and other personal belongings. To add to it, the fourth respondent and other in-laws forcibly snatched away her minor son, Sahil. It is averred that the minor is a young child, less than three years and stands deprived of the second petitioner’s maternal love, affection, company and security.

¶14

It is by now a well reputed and an unexceptionable principle of law that in child custody matters, welfare of the minor is of paramount consideration. But, before the Court could look into those considerations, Sri Indrajeet Singh, learned A.G.A. has raised a preliminary objection that a writ of habeas corpus cannot be invoked to decide virtually custody disputes about minors, between family members. He submits that the fourth respondent is the minor’s grandfather, whereas the second petitioner is his mother. If the mother feels that she is entitled to the minor’s custody, she ought to go to the Court of competent jurisdiction under the Guardians and Wards Act, 1890. In fact, according to the learned A.G.A., Section 25 of the Guardians and Wards Act is the ideal remedy for a natural guardian to secure custody of a minor from another natural guardian, vis-a-vis whom the claiming guardian may feel that he/ she has a better right to the minor’s custody. A writ of habeas corpus, according to Sri Indrajeet Singh, is not at all available to resolve custody disputes regarding minors.

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This question fell for consideration of the Supreme Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari

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and others, (2019) 7 SCC 42 . After review of earlier authority of their Lordships of the Supreme Court, it was held:

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“19. Habeas corpus proceedings is not to justify
or examine the legality of the custody. Habeas
corpus proceedings is a medium through which the
custody of the child is addressed to the
discretion of the Court. Habeas corpus is a
prerogative writ which is an extraordinary remedy
and the writ is issued where in the circumstances
of the particular case, ordinary remedy provided
by the law is either not available or is
ineffective; otherwise a writ will not be issued.
In child custody matters, the power of the High
Court in granting the writ is qualified only in
cases where the detention of a minor by a person
who is not entitled to his legal custody. In view
of the pronouncement on the issue in question by
the Supreme Court and the High Courts, in our
view, in child custody matters, the writ of
habeas corpus is maintainable where it is proved
that the detention of a minor child by a parent
or others was illegal and without any authority
of law.

¶19

20. In child custody matters, the ordinary remedy
lies only under the Hindu Minority and
Guardianship Act or the Guardians and Wards Act
as the case may be. In cases arising out of the
proceedings under the Guardians and Wards Act,
the jurisdiction of the court is determined by
whether the minor ordinarily resides within the
area on which the court exercises such
jurisdiction. There are significant differences
between the enquiry under the Guardians and Wards
Act and the exercise of powers by a writ court
which is summary in nature. What is important is
the welfare of the child. In the writ court,
rights are determined only on the basis of
affidavits. Where the court is of the view that a
detailed enquiry is required, the court may
declinetoexercisetheextraordinary
jurisdiction and direct the parties to approach
the civil court. It is only in exceptional cases,
the rights of the parties to the custody of the
minor will be determined in exercise of
extraordinary jurisdiction on a petition for
habeas corpus.”

¶20

It is true that the grandfather is not an utter stranger and, in fact, under the Personal Law of parties, who are Muslims, the grandfather may be regarded as the natural guardian in the absence of the father, who dies without appointing a testamentary guardian or an executor. But under the personal law of parties also, there is a

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distinction made between the natural guardianship that belongs to the father and the right to custody that vests in the mother until the age of seven years, in case of a minor boy. In case of a minor girl, that right to custody for the mother extends until the girl attains the age of puberty. In this regard, it may be mentioned that under the personal law of parties, there is a clear distinction about the law relating to guardianship of the person of a minor and guardianship of his/ her property. Reference may be made with profit to Mulla's Principles of Mahomedan Law (Nineteenth Edition) by M. Hidayatullah and Arshad Hidayatullah . Section 352 of Mulla’s Mahomedan Law, which falls under Part B of Chapter XVIII dealing with ‘Guardians of the Person of a Minor’, provides:

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“352.Right of mother to custody of infant
children. – The mother is entitled to the custody
(hizanat) of her male child until he has
completed the age of seven years and of her
female child until she has attained puberty. The
right continues though she is divorced by the
father of the child, unless she marries a second
husband in which case the custody belongs to the
father.”

¶24

Again, sections 353, 354 and 355 that have material bearing on the issue are extracted below:

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“353. Right to female relations in default of
mother.– Failing the mother, the custody of a boy
under the age of seven years, and of a girl who
has not attained puberty, belongs to the
following female relatives in the order given
below:-

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(1) mother's mother, how highsoever;

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(2) father's mother, how highsoever;

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(3) full sister;

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(4) uterine sister;

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(5) consanguine sister;

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(6) full sister's daughter;

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(7) uterine sister's daughter;

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(8) consanguine sister's daughter;

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(9) maternal aunt, in like order as sisters; and
(10) paternal aunt, also in like order as
sisters.

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354. Females when disqualified for custody.– A
female, including the mother, who is otherwise
entitled to the custody of a child, loses the
right of custody –

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(1) if she marries a person not related to the
child within the prohibited degrees (ss. 260-
261), e.g., a stranger, but the right revives on
the dissolution of marriage by death or divorce;
or

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(2) if she goes and resides, during the
subsistence of the marriage, at a distance from
the father's place of residence; or,

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(3) if she is leading an immoral life, as where
she is a prostitute; or

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(4) if she neglects to take proper care of the
child.

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355. Right of male paternal relations in default
of female relations.– In default of the mother
and the female relations mentioned in sec. 353,
the custody belongs to the following persons in
the order given below:-

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(1) the father;

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(2) nearest paternal grandfather;

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(3) full brother;

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(4) consanguine brother;

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(5) full brother's son;

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(6) consanguine brother's son;

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(7) full brother of the father;

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(8) consanguine brother of the father;

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(9) son of father's full brother;

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(10) son of father's consanguine brother;

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Provided that no male is entitled to the custody
of an unmarried girl, unless he stands within the
prohibited degrees of relationship to her (ss.
260-261).

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If there be none of these, it is for the Court to
appoint a guardian of the person of a minor.”

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It would be noticed that in sharp contrast to the law governing guardianship of the person of a minor, Part C of Chapter XVII of Mulla’s Mahomedan Law, enunciates the law quite differently regarding guardianship of the property of a minor. Section 359 provides thus:

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“359. Legal guardians of property.– The following
persons are entitled in the order mentioned below
to be guardians of the property of a minor:–

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(1) the father;

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(2) the executor appointed by the father’s will;

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(3) the father’s father;

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(4) the executor appointed by the will of the
father’s father.”

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Here, a juxtaposition of Sections 352, 353 and 355 on one hand and Section 359 on the other brings out in sharp relief the distinction between the right to custody or guardianship of the person of a minor and the right to guardianship of his/ her property.

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The principles of the personal law governing parties show that so far as the right to custody of a male child, who is a minor is concerned, the mother has an unqualified right in preference to the father till the child attains the age of seven years. The right, however, is lost once she remarries. If she does marry, the right to custody accrues to the father. A different principle applies where the mother is not there. In that case, it goes, according to a graded entitlement of ten different female relatives of the mother and the father in the order indicated under Section 353 ( supra ). Upon a failure of female relatives, it goes to an ordered list of ten male relatives, indicated under Section 355 ( supra ).

¶63

This entitlement of the mother to the custody of a minor male child (as well as female, which is not relevant here) fell for consideration of the Privy Council in Imambandi and ors. vs. Sheikh Haji Mutsaddi and ors., (1918-19) 23 CWN 50 , where it has been held by their Lordships:

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“It is perfectly clear that under the Mahomedan
law the mother is entitled only to the custody of
the person of her minor child up to a certain age
according to the sex of the child. But she is not
the natural guardian; the father alone, or, if he
be dead, his executor (under the Sunni law) is
the legal guardian. The mother has no larger
powers to deal with her minor child's property
than any outsider or non-relative who happens to
have charge for the time being of the infant…..”
“As already observed, in the absence of the
father, under the Sunni law the guardianship
vests in his executor. It the father dies without
appointing an execute or (wasi) and his father is
alive, the guardians hip of his minor children
devolves on their grandfather. Should he also he
dead, and have left an executor, it vests in him.
In default of these de jure guardians, the duty
of appointing a guardian for the protection and
preservation of the infants' property devolves on
the Judge as the representative of the Sovereign

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(Baillie's “Digest,” ed. 1875, p. 689; Hamilton's
Heddya, Vol. IV, p. 555). ……”

¶67

This then is the position about the entitlement to the custody of a minor male child under the Muslim Law. But, it must be remembered that the personal law of parties is not the final word about entitlement to custody or guardianship in India. The right is regulated by statute. The statute is the Guardians and Wards Act, 1890. The principle that the provisions of the Guardians and Wards Act would prevail over the personal law of parties in the matter of appointment or declaration of a guardian of the person or the property of a minor, is a principle that has been accepted without cavil by consistent authority. The point was considered and the law expounded in Rafiq vs. Smt. Bashiran and another, AIR 1963 Raj 239 . In Rafiq ( supra ), Jagat Narayan J. after doing a survey of the provisions of Sections 17 and 19 of the Guardians and Wards Act and relying on a decision of this Court in Mt. Siddq-un-Nissa Bibi v. Nizam-Uddin Khan(1) Sulaiman, AIR 1932 All 215 , held:

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“The learned Senior Civil Judge ignored the
provisions of Sec. 19 of the Guardians and Wards
Act, which runs as follows:—

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“Nothing in this Chapter shall authorise the
Court to appoint or declare a guardian of the
property of a minor whose property is under the
superintendence of a Court of Wards, or to
appoint or declare a guardian of the person—

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(a) of a minor who is a married female and
whose husband is not, in the opinion of the
Court, unfit to be guardian of her person, or
(b) of a minor whose father is living and is
not, in the opinion of the Court, unfit to be
guardian of the person of the minor, or

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(c) of a minor whose property is under the
superintendence of a Court of Wards competent
to appoint a guardian of the person of the
minor.”

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He did not come to a finding that the father is
unfit to be the guardian of the person of the
minor.

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It may be mentioned here that where the
provisions of the personal law are in conflict
with the provisions of the Guardians and Wards
Act the latter prevail over the former. It is
only where the provisions of the personal law are

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not in conflict with the provisions of the
Guardians and Wards Act that the court can take
into consideration the personal law applicable to
the minor in the appointment of a guardian. The
provisions of Sec. 19 of the Guardians and Wards
Act prevail over the provisions of Sec. 17 which
runs as follows:—

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“(1) In appointing or declaring the guardian of
a minor, the Court shall, subject to the
provisions of this section, be guided by what,
consistently with the law to which the minor is
subject, appears in the circumstances to be for
the welfare of the minor.

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(2) In considering what will be for the welfare
of the minor, the Court shall have regard to
the age, sex and religion of the minor, the
character and capacity of the proposed guardian
and his nearness of kin to the minor, the
wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed
guardian with the minor or his property.

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(3) If the minor is old enough to form an
intelligent preference, the Court may consider
that preference.

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(4) The Court shall not appoint or declare any
person to be a guardian against his will.”

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(3) In Mt. Siddq-un-Nissa Bibi v. Nizam-Uddin
Khan, ILR 54 All 128 : (AIR 1932 All 215),
Sulaiman, Acting C.J. observed at page 134 (of
ILR All) : (at p. 217 of AIR): —

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“The personal law has been abrogated to the
extent laid down in the Act. Where, however,
the personal law is not in conflict with any
provision of the Act, I would not be prepared
to hold that it has necessarily been
superseded.”

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and at page 131 (of ILR All) : (at p. 216 of AIR)

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“There can be no doubt that so far as the power
to appoint and declare the guardian of a minor
under Sec. 17 of the Act is concerned, the
personal law of the minor concerned is to be
taken into consideration, but that law is not
necessarily binding upon the court, which must
look to the welfare of the minor consistently
with that law. This is so in cases where Sec.
17 applies. In such cases the personal law has
to this extent been superseded that it is not
absolutely binding on the court and can be
ignored if the welfare of the minor requires
that some one else, even inconsistently with
that law, is the more proper person to be
appointed guardian of the minor. Sec. 19 then

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provides that “Nothing in chapter shall
authorise the Court …… to appoint or declare a
guardian of the person (a) of a minor who is a
married female and whose bus-band is not, in
the opinion of the court, unfit to be guardian
of her, person, or (b)…… of a minor whose
father is living and is not, in the opinion of
the court, unfit to be guardian of the person
of the minor, or (c) of a minor whose property
is under the superintendence of a Court of
Wards competent to appoint a guardian of the
person of the minor.” The language of the
section, as it stands, obviously implies that
when any of the three contingencies mentioned
in the sub-clauses exists there is no authority
in the court to appoint or declare a guardian
of the person of the minor at all; that is to
say, the jurisdiction of the court conferred
upon it by Sec. 17 to appoint or declare a
guardian is ousted where the case is covered by
Sec. 19.”

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(4) There is nothing on record to show that the
father of the minor is unfit to be the guardian
of her person. As was observed in B.N. Ganguly v.
G.H. Sarkar, AIR 1961 Madh-Pra 173 there is a
presumption that the parents will be able to
exercise good care in the welfare of their
children.”

¶87

The entire law about the right of the mother to the custody of her minor children, a son and a daughter, where the parties were an estranged Muslim couple, was considered by the Bombay High Court in Mohammad Shafi vs. Shamin Banoo, AIR 1979 Bom 156 . It must be remarked that the facts of the case in Mohammad Shafi show that it was truly a custody dispute between the estranged parents of the two minors, where the application by the mother for custody appears to be one made under Section 25 of the Guardians and Wards Act. She had asked for the custody of her minor son, aged four years and a minor daughter, aged two and a half years, at the time of commencement of action. The facts of the case founded on pleadings of parties can best be understood by a reference to their statement in paragraph nos.2 and 3 of the report, that read:

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“ 2. An application for appointment of herself as guardian and for the custody or returning the minors to her custody was filed by Shamim Banu against her husband Mohomed Shafi under sections

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7 and 25 of the Guardian and Wards Act. She
alleged therein that she was married to Mohomed
Shafi and bore three children from respondent
Mohomed Shafi, namely Mohomed Raees whose age was
given as 4 years, Waheeda Begum, whose age was
given as 2½ years and Farooque who was aged 1½
years at the time when this application was
presented. She then stated that she was given
very cruel treatment by the respondent who wanted
to marry another woman and drove her out and at
that time snatched Mohomed Raees and Waheeda
Begum from her. Farooque was then only a month
old and was allowed to be retained with her. She,
therefore, filed this application for custody or
return of the custody of the minors to herself,
namely, Mohomed Raees and Waheeda Begum and for
appointment of herself as the guardian under
section 7. She also stated in the application
that the respondent has married Sajjidabegum
after the petitioner was driven away and that the
respondent and his newly married wife are living
together along with the minors who were,
according to her, treated cruelly by the wife,
step-mother and the respondent.

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3. The respondent filed his written statement to
this application and denied that the petitioner
was driven away and was treated cruelly. He
claimed that he was the natural father of the
minor children whose ages were not disputed and
was, therefore, entitled to their custody. He
contended that the petitioner was divorced by him
on 7th November, 1975 and that she was a woman of
suspicious character and had connections with
others and used to leave the house of the
respondent at night in the company of somebody
secretly. That she has left him with a view to
carry on her affair with her boy friend. In these
circumstances and also under the personal law to
which the parties belong, namely, Mahomedan Law,
he claimed that he was entitled to the custody of
the children and was the proper and legal
guardian of the minors. It is his claim that the
application is motivated by the proceedings which
she has commenced under section 125 of the Code
of Criminal Procedure against him. He did not
deny that he has married a third time, but denied
that either the minors were given cruel treatment
by him or his new wife. Lastly, he contended that
the minors are being properly looked after and
that the petitioner who is staying with her
father has no means of income as also her parents
which could be sufficient to bring up these minor
children. That they would be practically starving
whereas the respondent has sufficient earnings of
his own. That there are other members in his

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family who come to him and look after his
children by the petitioner.”

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After a searching analysis of the provisions of the Guardians and Wards Act and review of well-known authority on the point, R.D. Tulpule, J. held, summarizing the principle:

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“33.In my opinion, as pointed out, the
provisions of the personal law applicable to the
parties stand superseded to the extent to which a
provision is made and which is inconsistent or
contrary to that personal law in the Guardians
and Wards Act. If the definition in section 4(2)
is capable of including the person who is not a
natural or legal guardian at the moment, but has
the care of the minor, then it seems to me that
he can maintain an application under section 25
of the Act. If such an application can be
maintained and if the minor was in the custody of
such person, as in the present case, a legal
guardian cannot say if it is in the interest of
the minor and for the welfare of the minor that
the custody should be handed over to such
guardian as contemplated under section 4 of the
Guardians and Wards Act, that such custody should
not be granted. It seems to me, therefore, that
if it was in the interest of the minor and for
its welfare to award the custody to such guardian
as defined under section 4(2) to him, its custody
should be given. It seems to me that even the
personal law applicable to the parties in this
case recognises the right to the custody of the
mother in spite of the father being a legal and
natural guardian during certain period. As I
pointed out that could not be upon any other
consideration except that the mother is the best
person suited to take care of the minor. If that
is so, I am inclined to think that she comes
within the definition of ‘guardian’ as
contemplated under section 4. In that view I do
not think particularly in the present
circumstances any other conclusion can be reached
as regards what is in the interest and welfare of
the minors.”

¶96

It is clear from the position of law as it stands that so far as the custody of a minor child is concerned, the mother is entitled to it until the child is of tender age, unless there be a clear disentitlement inferable. This right of the mother to the child’s custody is not based on the personal law of parties alone, but on a well acknowledged principle arising from human nature – and if this Court may dare say

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from the animal nature of man – that the mother is best oriented to look after the welfare of her infant or young child. The mother has always been regarded to be best equipped to take care of the needs of a young child, and secure his/ her welfare compared to a father. This right of the mothers is subject only to known exceptions, like her marriage to a stranger or the mother living a demonstrably immoral life. The mother's right is so well established, that in case of a minor of tender years, any other relative holding the child in his/ her custody while the mother is around, would be unlawful custody. Of course, the principle would not apply if the mother is disentitled under some reputed exception.

¶99

Here, it is not the father who holds the child in custody, claimed to be unlawful by the second petitioner. It is the grandfather of the minor. This Court is of opinion that the mother asking for her child’s custody from a grandfather, who is resisting the mother’s right, certainly entitles the mother to say that the grandfather’s custody is so unlawful that she is entitled to a writ of habeas corpus. She need not be relegated to her ordinary remedy of bringing and pursuing an application, under Section 25 of the Guardians and Wards Act.

¶100

To the end of a reassurance of the principle that a writ of habeas corpus in matters relating to custody of minors may be issued, reference may be made to a recent decision of a Division Bench of this Court in Manuj Sharma vs. State of Uttar Pradesh & Others, Habeas Corpus Writ Petition No.82 of 2019, decided on 12^th April, 2019 . In Manuj Sharma ( supra ), after a searching review of authority on the point, whether a writ of habeas corpus can lie to seek custody of a minor between an estranged couple, particularly, the decisions of the Supreme Court in Nithya Anand Raghavan v. State of NCT of Delhi and others, (2017) 8 SCC 454 and Syed Saleemuddin v. Dr. Rukhsana and Ors., (2001) 5 SCC 247 , it has been held:

¶101

“24. Having considered the aforesaid judgments of the Supreme Court and the principles laid down in

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the aforestated cases for grant of writ of habeas
corpus, it appears that the condition precedent
for instituting a petition seeking writ of habeas
corpus is the person for whose release, the writ
of habeas corpus is sought, must be in detention
and he must be under detention by the authorities
or by any private individual. It is his detention
which gives the cause of action for maintaining
the writ of habeas corpus. If the allegations in
the writ of habeas corpus read as a whole do not
disclose the detention, in other words, if there
is no allegation of illegal detention, the writ
petition seeking writ of habeas corpus is liable
to be rejected summarily. Such writ is available
against any person who is suspected of detaining
another unlawfully and the habeas corpus Court
must issue it, if it is shown that the person on
whose behalf it is asked for is unlawfully
deprived of his liberty. The writ can be
addressed to any person whatever - an official or
a private individual - who has another in his
custody.”

¶104

It would be noticed from a perusal of the decisions of the Supreme Court in Nithya Anand Raghavan ( supra ) and Syed Saleemuddin ( supra ) referred to by the Division Bench of this Court in Manuj Sharma that the remedy of a habeas corpus to an estranged parent has not been held unavailable, even against the other parent. All that appears to be the requirement is to show that the child with the other parent or with some other member of the family is in detention and that detention is unlawful. It is but logical that in a case where one has to judge the legality of the minor’s detention by the other parent or some other relative, the nature of the applying parent’s right, vis-a-vis the detaining parent or relative's is decisive. The decision of their Lordships of the Supreme Court in Tejaswini Gaud also says that the jurisdiction of the High Court in granting a habeas corpus is limited by the fact whether the detention of the minor is by a person who is not entitled to his legal custody. It is true that the Supreme Court has held in Tejaswini Gaud that habeas corpus can be issued in exceptional cases. It is not that the writ is completely unavailable in matters where a parent claims custody, to which he/ she is lawfully entitled.

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In this Court’s opinion, where there is not much of a debatable right available to the other parent or some other relative, who is detaining the child contrary to the wish of the applying parent, the writ ought to issue. However, if the parent or the other relative detaining the minor has a reasonable right that he/ she can show on affidavits, the parties ought to be left to pursue their remedy under the Guardians and Wards Act. As such, what this Court has concluded hereinabove that this petition is maintainable, proceeds on valid principles.

¶107

Still, it has to be inquired whether the second petitioner has that kind of an ex facie and impeachable right, vis-a-vis respondent no.4, Abdul Sohrab, the minor’s grandfather. This Court had the advantage of speaking to Abdul Sohrab and hearing him in person. He has appeared in person along with his wife and the minor, Sahil. He did not choose to file a counter affidavit and intelligibly placed his case before the Court. He was accompanied by his wife. On the fact being pointed out by the learned Counsel for the petitioners, he conceded that his wife is not the minor’s grandmother. She is a woman, whom the fourth respondent has later married. It is, therefore, evident that the minor does not have his grandmother along with his grandfather. Rather, he has a step grandmother. The minor’s father is dead. The second petitioner, Rehana Bano is therefore, the only surviving parent of the child. The Court also ascertained the parties station in life and their resources. The Court was informed by the fourth respondent, Abdul Sohrab that he is a teacher by profession and has sufficient means to maintain the minor. He said that the mother, the second petitioner, has no means of her own to maintain the minor. She is dependent upon her parents, with whom she stays after the fourth respondent’s son, that is to say, Rehana Bano’s husband, Amjad Khan passed away.

¶108

The second petitioner, Rehana Bano on the other hand stated before the Court in person, which the Court permitted despite presence of learned Counsel representing her, that she is a

¶109

¶110

Postgraduate and undertakes private tuition. She is able to earn reasonably well, besides receiving generous support from her family, with whom she stays after her husband’s death.

¶111

This Court is mindful of the fact that quite apart from what the personal law of parties says about her right to custody until the age of seven years as regards a minor male child, the welfare of the minor is certainly more secure in the mother’s hand. It is far more secure than in the hands of an aging grandfather, who has married a second time and introduced a step grandmother for the minor in his family. The welfare of the minor, it is well acknowledged, is not secured by money alone. It is the product of multifaceted grooming that involves affection, supervision, guidance, education, inculcation of good human values and many other factors of like genre, that go to achieve realization of the human personality. In this case, this Court is of clear opinion that the minor’s welfare under the circumstances noticed above is far better secured with the mother than in the hands of the grandfather, respondent no.4.

¶112

In the result, this Habeas Corpus Writ Petition is allowed .

¶113

The rule nisi dated 28.08.2020 is made absolute. The minor, Sahil, who has been produced before this Court in compliance with the rule nisi , is ordered to be handed over forthwith to petitioner no.2, Smt. Rehana Bano, who is present in Court. He shall remain in her custody until otherwise ordered by a Court of competent jurisdiction.

¶114

The fourth respondent, Abdul Sohrab, who is the minor's grandfather, shall have visitation rights to meet the child on the first Sunday of every calendar month between 10:00 a.m. to 12.00 noon at the residence of the second petitioner, Smt. Rehana Bano, situate at Village Budkuda, Tehsil, Jakhania, Police Station Budkuda, District Ghazipur. During these visitations, the minor shall be provided free access to his grandfather by the second petitioner, Smt. Rehana Bano. She shall extend due courtesy to the fourth respondent, Abdul Sohrab.

¶115

¶116

Let this order be communicated to the learned District Judge, Ghazipur, the learned Chief Judicial Magistrate, Ghazipur and the Superintendent of Police, Ghazipur by the office forthwith.

¶117

Order Date :- 3.9.2020 Neeraj/ Anoop

Sahil (Minor) and Another v. State of U.P. and 3 Others

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Sahil (Minor) and Another v. State of U.P. and 3 Others

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