Gohar Begam Vs. Suggi Alias Nazma
Begam & Ors  INSC 106 (27 August 1959)
IMAM, SYED JAFFER WANCHOO, K.N.
CITATION: 1960 AIR 93 1960 SCR (1) 597
Habeas Corpus-Application for recovery of
child-Duty of Court-Alternative remedy, if a bar-Principles applicable-
Criminal Procedure Code, 1898 (V of 1898), s. 49r.
An unmarried Sunni Muslim mother of an
illegitimate female child made an application under s. 49I Of the Code of
Criminal Procedure for the recovery of the child from the respondents.
Held, that under the Mohammedan Law the
mother of an illegitimate female infant child is entitled to its custody.
The refusal to restore such a child to the
custody of its mother would result in an illegal detention of the child within
the meaning of S. 49I of the Criminal Procedure Code.
A dispute as to the paternity of the child is
irrelevant for the purpose of the application. The Supreme Court will interfere
with the discretionary powers of the High Court if the discretion was not
Held, also, that before making the order for
the custody of the child the court is called upon to consider its welfare.
Held, further, that the fact that a person
has a remedy under the Guardian and Wards Act, is no justification for denying
him the remedy under s. 49I Of the Criminal Procedure Code.
Held, further, that in issuing writs of
habeas corpus the courts have power in the case of an infant to direct its
custody to be placed with a certain person.
The Queen v. Clarke, (1857) 7 E.L. & B.L.
186 and The King v. Greenhill, (1836) AD & E. 624, relied on.
Zara Bibi v. Abdul Razzak, (1910) XII Bom.
Subbuswami Gounden v. K. Kamakshi Ammal,
(1930) I.L.R. 53 Mad. 72 and Rama Iyer v. Nata Raja lyer, A.I.R. 1948 Mad.
294, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 11 of 1959.
Appeal by special leave from the judgment and
order dated April 30,1958, of the Bombay High Court in Criminal Application No.
508 of 1958.
K. M. Desai and 1. N. Shroff, for the
Ganpat Rai, for respondents Nos. 1 to 4 and
K.L. Hathi and B. H. Dhebar, for respondent
No. 5, 76 598 1959. August 27. The Judgment of the Court was delivered by
SARKAR J.-The appellant is an unmarried Sunni Moslem woman.
She has an infant female illegitimate child
The appellant made an application to the High
Court at Bombay under s. 491 of the Code of Criminal Procedure for the recovery
of the custody of the child from the respondents. That the application was
refused. Hence this appeal.
The appellant's case is as follows: She is
the daughter of one Panna Bai. The respondent Kaniz Begum is Panna Bai's
sister. Kaniz Begum, whom it will be convenient to refer as the respondent,
took the appellant over from Panna Bai and brought her up. Prior to 1951 the
respondent had put her in the keeping of two persons and had thereby made
pecuniary gain for herself. In 1951 the appellant met one Trivedi and since
then she was been living continuously in his exclusive keeping. The appellant
stayed with Trivedi at Jabalpur up to 1954. On September 4, 1952, the child
Anjum was born to her by the said Trivedi. In November 1953 she bore another
child to him of the name of Yusuf alias Babul. In 1954 the appellant with her
said two children, her mother who had been living with her, and Trivedi left
Jabalpur and came to live in Bombay. After coming to Bombay, Trivedi for
sometime lived with his relatives as he could not find independent
accommodation. -During this time, the appellant with her children and mother
stayed with the respondent who was then living in Bombay, but Trivedi used to
visit the appellant daily at the, residence of the respondent. In January 1956
the appellant bore a third child to Trivedi called Unus alias Chandu. After the
birth of Unus, Trivedi took the appellant, her mother and the two younger
children to a hill station near Bombay called Khandala and the party stayed
there for three or four months. At the time the appellant had gone to Kandala,
the respondent went to Pakistan on a temporary visa and she took the child
Anjum with her presumably with the consent of the appellant, 599 After
returning from Khandala, Trivedi was able to secure a flat for himself in
Marine Drive, Bombay and the appellant with her mother and two sons began to
stay with him there.
In April 1937 Trivedi moved into another flat
in Warden Road, Bombay, with the appellant, her two younger children and mother
and has since then been living there with them.
After the respondent returned from Pakistan
with Anjum, the appellant who had then moved into the flat in Marine Drive,
asked the respondent to send Anjum to her but the respondent refused to do so.
Since then the respondent has been refusing to restore the custody of the child
Anjum to the appellant.
In these circumstances, the appellant made
her application under s. 491 of the Code of Criminal Procedure on April 18,
1958. She stated that she apprehended that the respondent would remove Anjum to
Pakistan any day and there was already a visa for Anjum available for that
purpose. She also stated that in view of the relationship between the parties
she had not earlier taken the matter to court. On the date of the application
the respondent was away in Pakistan. She had not however taken the child Anjum
with her but had left her in her flat at Bombay in charge of her cousin Suggi
and an Aya, Rozi Bhangera. The appellant stated that the respondent had asked
her sister Bibi Banoo and the latter's husband Mahomed Yakub Munshi to look after
the child. The appellant had therefore made these four persons only the
respondents to her application. Later, on the respondent's arrival back in
Bombay, she also was made a party to the application. The other respondents
contended in the High Court that they had nothing to do with the child and had
been made parties to the application unnecessarily. They have not appeared in
this appeal It is clear however that they did not make over the custody of the
child Anjum to the appellant when the application was made and the affidavits
filed by them leave no doubt that their sympathies are with the respondent
Kaniz Begum. The state of Bombay was also 'Made a respondent to the
application, but that was a mere matter of form. The State has no interest 600
in the case and has not taken any part in the proceedings.
The respondent opposed the application
denying the correctness of some of the allegations made in the petition of the
appellant. She denied that Trivedi was the father of the child Anjum and said
that the father was a Shia Moslem called Samin Naqui. She said that the
appellant's mother had given the appellant to her to: bring up when very young
as she had not the means to do so herself and since then the appellant had been
living with her all along and left her flat in company with Trivedi only during
her temporary absence in Pakistan in 1956. She denied that she had made the
appellant live in the keeping of any person as alleged by the latter. She
contended that she had intended that the appellant would marry and live a clean
and respectable life but other influences operated upon her and she went to
live with Trivedi as his mistress. She denied that she had prevented the
appellant access to the child Anjum as the latter stated. She contended that she
was looking after the child Anjum with great care and solicitude, and had put
her in a good school and kept a special Aya for her. She also said that she was
well off and had enough means to look after the child well. She contended that
it was not in the interest of the child to live with the appellant because she
was living in the keeping of a man who might turn her out and she would then
have to seek the protection of another man. She said that she had no child of
her own and was fond of Anjum whom she had been treating as her own child.
The learned Judges of the High Court observed
that the case raised various controversial questions specially as to the
paternity of the child, as to whether the respondent had made the appellant
live in the keeping of different persons and also as to whether she had
prevented the appellant from having access to the to the child. The learned
Judges observed that it was not the function of a court in an application under
s. 491 to record findings on such controversial facts and that, in these
circumstances, the proper forum for the appellant was to move a civil court
under the 601 Guardian and Wards Act for the custody of the child. The learned
Judges further observed that they were prima facie satisfied that the child was
not illegally and improperly detained by the respondents. They therefore
dismissed the appellant's application.
We are unable to appreciate the view the
learned Judges of the High Court. It seems to us that the controversial facts
referred to by them were wholly irrelevant to the decision of the application.
We have not been able to find one single fact relevant to the issue in this
case which is in controversy. The facts, which are abundantly clear and beyond
dispute are these. The child Anjum is the illegitimate daughter of the
appellant who is a moslem woman. The child was at the date of the application
less than six years' old and now she is just over seven years old. The
appellant is a singing girl by profession and so is the respondent. The
appellant stated in her affidavit that the respondent was in the keeping of a
man and this the respondent has not denied. It is not the respondent's case
that she is a married woman leading a respectable life. In fact she admits that
she allowed Trivedi to live in her flat with the appellant as his mistress and
took money from him for " Lodging and Boarding Charges ". Trivedi has
sworn an affidavit acknowledging the paternity of the child and undertaking to
bring her up properly as his own child. He is a man of sufficient means and the
appellant has been for a considerable time living with him as his mistress.
On these undisputed facts the position in law
is perfectly clear. Under the Mohammedan law which applies to this case, the
appellant is entitled to the custody of Anjum who is her illegitimate daughter,
no matter who the father of Anjum is.
The respondent has no legal right whatsoever
to the custody of the child. Her refusal to make over the child to the
appellant therefore resulted in an illegal detention of the child within the
meaning of s. 491. This position is clearly recognised in the English cases
concerning writs of habeas corpus for the production of infants.
602 In The Queen v. Clarke (1) Lord
Campbell,, C. J., said at p.
" But with respect to a child under
guardianship for nurture, the child is supposed to be unlawfully imprisoned
when unlawfully detained from the custody of the guardian;
and when delivered to him, the child is
supposed to be set at liberty." The courts in our country have consistently
taken the same view. For this purpose the Indian cases hereinafter cited may be
referred to. The terms of s. 491 would clearly be applicable to the case and
the appellant entitled to the order she asked.
We therefore think that the learned Judges of
the High Court were clearly wrong in their view that the child Anjum was not
being illegally or improperly detained. The learned Judges have 'not given any
reason in support of their view and we are clear in our mind that view is
unsustainable in law.
Before making the order the court is
certainly called upon to consider the welfare of the infant concerned. Now
there is no reason to think that it is in the interest of the child Anjum to
keep her with the respondent. In this connection it is relevant to state that
at some stage of the proceedings in the High Court the parties appeared to have
arrived at a settlement whereby it had been agreed that the child Anjum would
be in the custody of the appellant and the respondent would have access to the
child. The learned Judges of the High Court however were not prepared to make
an order in terms of this settlement because, as they said, " It did not
appear to be in the interest and welfare of the minor ". Here again they
give no reason for their view.
Both parties belong to the community of
singing girls. The atmosphere in the home of either is the same. The appellant
as the mother can be expected to take better care of the child than the
respondent. Trivedi has acknowledged the paternity of the child. So in law the
child can claim to be maintained by him. She has no such right against the
respondent. We have not been able to find a single reason how the interests of
the child (1) (1857) 7 E.L. & B.L. 186: 119, E. R. 1217.
603 would be better served if she was left in
the custody of the respondent and not with the appellant.
We further see no reason why the appellant
should have been asked to proceed under the Guardian and Wards Act for
recovering the custody of the child. She had of course the right to do so. But
she had also a clear right to an order for the custody of the child under s.
491 of the Code. The fact that she had a right under the Guardians and Wards
Act is no justification for denying her the right under s. 491.
That is well established as will appear from
the cases hereinafter cited.
The learned Advocate for the respondent said,
we ,should not interfere with the order of the High Court as it was a
discretionary order. The learned Judges however have not given any reason which
led them to exercise their discretion in the way they did. We are not satisfied
that the discretion was judicially exercised.
We are clear in our view that the judgment of
the High Court was wrong and should be set aside.
It is further well established in England
that in issuing a writ of habeas corpus a court has power in the case of an
infant to direct its custody to be placed with a certain person. In The King v.
Greenhill (1) Lord Denman, C. J., said:
" When an infant is brought before the
Court by habeas corpus, if he be of an age to exercise a choice, the Court
leaves him to elect where he will 'go. If he be not of that age, and a want of
direction would only expose him to dangers or seductions, the Court must make
an order for his being placed in the proper custody." See also The Queen
v. Clarke (2). In Halsbury's Laws of England, Vol. IX, art. 1201 at p. 702 it
" Where, as frequently occurs in the
case of infants, conflicting claims for the custody of the same individual are
raised, such claims may be enquired into on the return to a writ of habeas (1)
(1836) 4 AD & E 624, 640; III E.R. 922, 927.
(2) (1857) 7 E,L, & B.L. 186; 119 E.R.
604 corpus, and the custody awarded to the
proper person." Section 491 is expressly concerned with the directions of
the nature of a habeas corpus. The English principles applicable to the issue
of a writ of habeas corpus, therefore, apply here. In fact the Courts in our
country have always exercised the power to direct under s. 491 in a fit case
that the custody of an infant be delivered to the applicant: see Rama Iyer v.
Nataraja Iyer (1), Zara Bibi v. Abdul Razzak (2 ), and Subbuswami Goundan v.
Kamakshi Ammal (3). If the courts did not have this power, the remedy under s.
491 would in the case of infants often become infructuous.
We, therefore, set aside the judgment and
order of the High Court and direct the respondents other than the State of
Bombay to make over the custody of the child Anjum to the appellant. Let the
child be produced by the respondents before the Registrar, Appellate Side, High
Court of Bombay, and the Registrar will than make over custody to the
appellant. The passport in respect of the child Anjum deposited in this Court
by the respondents may be made over to the Advocate on record for the appellant.
The injunction restraining the removal of the child Anjum outside Greater
Bombay will continue till she is delivered to the appellant.
(1) A.I.R. 1948 Mad. 294.
(2) (1910) XII Bom, L.R. 891 (3) (1930)
I.L.R. 53 Mad. 72.