IMPORTANT POINT
If a minor child is removed from custody of lawful guardian against his/her wishes, and detained by a person, though father such detention amounts to wrongful confinement and search warrant can be issued under section 97 Cr. P.C.

JUDGMENT

R.R. Misra, J. - Out or the wedlock of Zahirul Hasan and Smt. Hasin Bano, a son was born. In January 1987 the father forcibly took the child aged 1½ year from the custody of the mother. The mother, therefore, moved an application under section 97 of the Code of Criminal Procedure against the father. It is admitted case of the parties that relationship of husband and wife still subsists. During pendency of the said application before the Additional District Magistrate (City) Kanpur Nagar, an attempt for a compromise was made but the same failed. On a consideration of the entire facts of the case the Additional

District Magistrate (City) Kanpur Nagar came to conclusion that the wife was legally competent to keep the child with her and the case was covered by the provisions of section 97 of the Code of Criminal Procedure. He also relied upon the concession made on behalf of the husband that he had no objection in giving custody of the child to his mother. Therefore, the husband was directed to band over the child to the mother in presence of the police and was further directed not to take away the child without due consent of the mother. The husband did not comply with the said directions of the court. He, however, filed a revision against the said order which has also been dismissed by the VIII Additional Sessions Judge, Kanpur Nagar, vide an order dated 6-5-1987.

2. I have heard learned counsel appearing on behalf of the husband. The first submission raised by learned counsel for the applicant is that the father was, under facts of the case, guardian of the child and not the mother. The second submission is that the present case is not covered by the provisions of section 91 of the Code of Criminal Procedure inasmuch as confinement of the child in the present case did not amount to an offence. Thirdly, it is contended that at any rate, the proper remedy of the wife in the present case was to move an application under the Guardians and Wards Act.

3. Let us now examine these contentions one by one. Under the Mohammedan Law mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years. This position continued even though she is divorced except 10 cases where she remarries. The word 'custody' is synonymous with guardianship. In the case of Imambandi v. Hazi Mussaddi1 it was held that Hidaya and Fatwa Alamgiri are recognised as standard authorities in this country for Hanafi Sunnis. The following extracts are illustrative of the right of custody of the mother.

4. In Hamilton Hiday Volume 1 at page 385 it has been observed: -

"If a separation takes place between a husband and wife who are possessed of infant child, the right of nursing and keeping in vest with the mother because it is recorded that the woman once applied to the Prophet saying:

“O Prophet of God! This is my son the fruit of my womb, cherished in my bosom and suckled at my breast and his father is desirous of taking him- away from me in his own 'care' to which the prophet replied, "then has a right in the child prior to the husband, so long as thou does not marry with a "stranger" moreover a mother is not only more tender but also better qualified to cherish a child during infancy so that committing the care to her is of advantage to the child".

10. Fatwal Alamgiri Vol. 1 page 728 it has been observed:

"The mother is of all the persons best entitled to the custody of her infant children during the connubial relation ship as well as after its dissolution".

Amir Ali in Mohammedan Law Volume II at page 304 has observed:

"The mother can on no account give up her right of 'Hizanat' for even if she were to obtain a Khula in lieu of her abandonment of her right to her child custody Khula will be valid and she will retain a right of Hizanat".

Mulla in Principles of Mohammedan Law para 352 (18th Edition) has observed:

"352: Right of mother to custody of infant children. The mother is entitled to the custody (Hizanat) of her mal