A habeas corpus petition cannot be used to decide custody and guardianship disputes, especially when it involves questions of suitability and the best interest of the minor. Under Muslim law, the father's entitlement to custody is not absolute, and the court has the power to appoint the mother or another suitable person as the guardian if the father is unfit.

1. The Petitioner by this petition of habeas corpus seeks production of his son stated to be aged over 7 years from the custody of his ex-wife and her brother and mother impleaded as Respondents. It is the case of the Petitioner himself that the child is in the custody of mother at Hyderabad since May 2009.

2. It has been enquired from the counsel for the Petitioner as to how this petition would be maintainable in as much as a habeas corpus petition cannot be a substitute for a proceeding seeking guardianship of the minor child.

3. Counsel for the Petitioner has referred to Gohar Begum v. Suggi AIR 1960 SC 93 in para 10 whereof habeas corpus petition was held to be maintainable for the reason of the Respondent in that case having no legal right to the custody of the minor child. Reference is also made to para 357 of Mulla Principles of Mahomedan Law 16th Edition laying down that the father is entitled to custody of a boy over seven years of age. Reference is further made to Smt. Farjanabi v. S.K. Ayub Dadamiya AIR 1989 Bom 357 in para 6 whereof it was observed that under the Muslim law, by which the parties hereto are governed, the father is entitled to custody of son over seven years of age. It is thus contended that the Respondent mother has no right to the custody of the minor and the Petitioner being entitled in law to custody is entitled to enforce the said right through this petition for habeas corpus.

4. We are unable to agree and are unwilling to entertain this habeas corpus petition to adjudicate competing claims of the Petitioner as father and Respondent as mother to the custody/guardianship of the minor son and which adjudication shall necessarily entail questions of suitability and best interest of minor.

5. The Supreme Court in Gohar Begum (supra) was concerned with a case where the Respondent had no legal right to custody. Such is not the position here. Mulla itself states that there is no rule of Mahomedan law that the father is entitled to custody even if he is unfit and that the court has power to appoint mother or any other person as the guardian of the minor if the father is unfit to be a guardian.

6. The Bombay High Court in Farjanabi was not concerned with a habeas corpus petition.

7. Counsel for the Petitioner faced with the aforesaid has contended that it is for the Respondents to, upon being noticed, to take plea of the Petitioner father being unfit to have custody/guardianship of the minor.

8. We are not inclined to issue notice even in view of the aforesaid and especially when the child is in custody of Respondent mother for last over two years.

9. Writ petition is accordingly dismissed with liberty to the Petitioner to approach for a competent to adjudicate guardianship/custody matters.

CRL MA7240/2011 (for exemption).

Allowed, subject to just exceptions.