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IN THE HIGH COURT OF ALLAHABAD
K. C. BHARGAVA
KUMARI KANIZ FATEMA ALIAS SUDUHI - Appellant
Versus
SYED SARVAR HUSAIN RIZVI - Respondents
W. P. 4928 Of 1990
Decided On : 01/20/1992
HABEAS CORPUS - CUSTODY OF MINOR - DISPUTED QUESTIONS OF FACT - MAINTAINABILITY OF WRIT PETITION - REGULAR CIVIL COURT - JURISDICTION - ART. 226 OF THE CONSTITUTION OF INDIA - SUMMARY PROCEEDINGS - WELFARE OF THE CHILD - NATURAL GUARDIAN - FINANCIAL STATUS OF THE FATHER OF THE MOTHER OF THE PETITIONER.
Fact of the Case:
The petitioner, a minor child, filed a Habeas Corpus petition under Art. 226 of the Constitution of India, alleging that she was illegally detained by her father, the opposite party No. 1. The petitioner's mother alleged that the opposite party No. 1 had married her while already being married to another woman, and that he had neglected and mistreated her and the petitioner. The opposite party No. 1 denied the allegations and claimed that he was the lawful guardian of the petitioner and that her custody was not unlawful.
Finding of the Court:
The court found that there were serious disputes between the parties on questions of fact, including the dowry, divorce, and the visit of girls to the residence of the opposite party No. 1. The court also noted that the petitioner was a minor and that her statement could not be relied upon to decide the petition.
Issues: 1. Whether the Habeas Corpus writ petition was maintainable in light of the disputed questions of fact. 2. Whether the court should exercise its jurisdiction under Art. 226 of the Constitution of India in the present case.
Ratio Decidendi: 1. The court held that the disputed questions of fact could not be decided in the Habeas Corpus writ petition and that the matter should be left to be decided by the Regular Courts. 2. The court found that it was not a fit case to exercise its jurisdiction under Art. 226 of the Constitution of India, as the matter should be decided by the Regular Courts.
Final Decision: The court dismissed the Habeas Corpus writ petition.
( 1 ) THIS is a Habeas Corpus petition under Art. 226 of the Constitution of India.
( 2 ) THE allegations, briefly stated, are that the mother of the petitioner Smt. Shaveeh Zehra alias Nishat at the time of the marriage did not know that opposite party No. 1 Syed Sarvar Husain Rizvi has also married earlier. The petitioner;s mother was married to opposite party No. 1 on 10-5-1984 at Lucknow, and a dowry was also given. The petitioner was born on 25-12-1985. The opposite party No. 1 started making demands from his first wife which was not complied with, hence she was divorced by opposite party No. 1. As the parties are Shia the alleged divorce is not binding and the first wife still continues to be the wife of opposite party No. 1. After the birth of the petitioner, the opposite party No. 1 started neglecting the petitioner;s mother. The apposite party No. 1 used to call girls in absence of his parents. The opposite party No. 1 forced the petitioner;s mother to cook food for the girls who used to visit that place. She was even asked to wash the clothes etc. of those girls. The opposite party No. 1 also used to demand money from time to time. The opposite party No. 1 demanded Motor Cycle worth Rs. 20,000/but the same was refused. The opposite party No. 1 forced the mother of the petitioner to take poison and she was rushed to Civil Hospital at Lucknow. The opposite party No. 1 thereafter did not give any proper treatment to the mother of the petitioner and left her to the place of maternal grand father. Thereafter the opposite party No. 1 did not come to take back the petitioner or her mother. The opposite party No. 1 sent a Talaqnama. The petitioner wants to stay with the mother. It is further alleged that the opposite party No. 1 has two daughters from this first wife and he is neglecting the petitioner. In the circumstances of the case it will not be proper for the petitioner to stay with her father and her custody should be given to the mother of the petitioner.
( 3 ) THE petition is opposed. It is alleged by the opposite party No. 1 that the petitioner is only 4 1/2 years of age and the opposite party No. 1 is a lawful guardian of the petitioner and the custody of the child being not unlawful this habeas corpus petition does not lie, and the matter should be allowed to be agitated in a proper Court. It is, however, alleged that the welfare of the child is not safe in the custody of Smt. Shahbeen Zehra who has filed affidavit along with the Habeas Corpus petition as she has been lawfully divorced by the opposite party No. 1 and after the divorce she deserted the petitioner and left her at the house of the brother of opposite party No. 1, Syed Anwar Husain Rizvi, on 22-1-1990. She, as the mother of the petitioner, never cared the petitioner and she used to go out of the house of opposite party No. 1 for several days leaving the child to be looked after by the mother of opposite party No. 1. After the divorce was pronounced the mother of the petitioner has come forward to claim the custody of the minor. The father of the mother of the petitioner was a Class IV employee and his financial condition is not good. He has eight issues. The other allegations made by the petitioner against the opposite party No. 1 are without substance and are denied. The divorce was pronounced on 27-11-1989. It is alleged that the theory of administering poison to the mother of the petitioner is absolutely false. The mother of the petitioner left the house of opposite party No. 1 on 13-11-1989. The petitioner is being looked after by opposite party No. 1 and his mother.
( 4 ) HEARD learned counsel for the parties. Learned counsel for the opposite party No. 1 has raised a question about the maintainability of this Habeas Corpus Writ petition. According to the learned counsel for the opposite party No. 1 the disputed questions of fact cannot be decided in this petition and the matter should be decided by the Regular Civil Court. Lear
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