Under Mohammedan law, the mother of an illegitimate child is entitled to its custody, regardless of who the father is.

Judgment

SARKAR, J. : The appellant is an unmarried sunni moslem woman. She has an infant female illegitimate child called Anjum. 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 application was refused. Hence this appeal.

2. 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 has 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 Khandala, the respondent went to Pakistan on a temporary visa and she took the child Anjum with her presumably with the consent of the appellant. 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 1957 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.

3. 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 K