Back
Allahbad High Court
MOHD.HAMIDHUSSAIN
Imtiaz Bano - Appellant
Versus
Masood Ahmad Jafri - Respondent
Decided On : 08/17/1978
HABEAS CORPUS - CUSTODY OF INFANT SONS - HANAFI MOHAMMEDAN LAW - MOTHER'S RIGHT TO CUSTODY - REMARRIAGE OF FATHER - WELFARE OF INFANTS - WRIT MAINTAINABLE DESPITE ALTERNATIVE REMEDY UNDER GUARDIAN AND WARDS ACT.
Fact of the Case:
The petitioner, Smt. Imtiaz Bano, filed a habeas corpus petition seeking custody of her two infant sons from her former husband, Masood Ahmad Jafri, and his parents. The parties were governed by Hanafi Mohammedan Law, under which the mother is entitled to custody (Hizanat) of her infant sons up to the age of seven years, even if she is divorced by the father. However, this right is lost if she marries a second husband.
Finding of the Court:
The court held that the habeas corpus petition was maintainable despite the availability of an alternative remedy under the Guardian and Wards Act. The court reasoned that the remedy under the Guardian and Wards Act was not adequate or efficacious in the circumstances of the case, as it would take a long time to resolve the issue of custody, and by that time, the elder son would have attained the age of 7 years and the mother's claim to his custody would be lost.
Issues: 1. Whether the habeas corpus petition was maintainable in light of the availability of an alternative remedy under the Guardian and Wards Act. 2. Whether the mother was entitled to the custody of her infant sons under Hanafi Mohammedan Law, considering that she had been divorced by the father and he had remarried.
Ratio Decidendi: 1. The court held that the habeas corpus petition was maintainable because the remedy under the Guardian and Wards Act was not adequate or efficacious in the circumstances of the case. The court reasoned that the proceedings under the Guardian and Wards Act would take a long time to resolve the issue of custody, and by that time, the elder son would have attained the age of 7 years and the mother's claim to his custody would be lost. 2. The court held that the mother was entitled to the custody of her infant sons under Hanafi Mohammedan Law, as she had not remarried and the father had remarried. The court also considered the welfare of the infants and found that it was in their best interest to be in the custody of their mother.
Final Decision: The court allowed the habeas corpus petition and directed the father to hand over the custody of the two infant sons to the mother. The court also directed that the father would have access to meet his sons once a week at the mother's residence.
2. The admitted facts are that the contesting parties are Mohammedans governed by the Hanafi Law. Petitioner Smt. Imtiaz Bano was married to Masood Ahmad Jafri, respondent No. 1, on 14th July 1967 and out of this wedlock three sons were born to them. The youngest son died, but the other two sons, namely, Tariq Shafiq and Tahir Shafiq born on 1-12-73 and 21-12-75, respectively, are alive and at the time of the filing of this petition they were aged about 5 and 3 years, respectively. The relations between the husband Masood Ahmad Jafri and his wife Smt. Imtiaz Bano got strained and the petitioner Smt. Imtiaz Bano has been divorced by Masood Ahmad Jafri, respondent No. 1 who has taken a second wife. The assertion of the second marriage by Masood Ahmad Jafri as contained in para 17 of the affidavit of Smt. Imtiaz Bano has not been specifically denied by Masood Ahmad Jafri in his counter-affidavit, and in para 16 of the counter-affidavit a vain effort has been made to deny specifically the fact of second marriage. However, Sri M.A. Qadeer, learned counsel for Masood Ahmad Jafri respondent on a specific query by the Court has made a statement in Court during the course of his arguments that Masood Ahmad Jafri has in fact married another woman. This specific denial or admission of second marriage was essential in order to determine the question of entrusting the custody of the two infant sons in the anxiety of the Court to guard their welfare.
3. Allegations and counter-allegations have been made by the contesting parties as regards the ill-treatment meted out to each other. However, this question of ill-treatment and strained relations between the petitioner and her former husband Masood Ahmad Jafri is not relevant for the decision of this habeas corpus petition.
4. Only two questions arise in this petition. The first is the preliminary objection raised by Sri M.A. Qadeer, learned counsel for respondent No. 1, that this habeas corpus petition is not maintainable and the remedy for the petitioner lies under the Guardian and Wards Act. The second question for consideration is as to whether Smt. Imtiaz Bano petitioner or the respondent Masood Ahmad Jafri is entitled to the custody of their two infant sons in the best interest of their welfare in the circumstances of this case. Needless to say, that if the preliminary objection of the non-maintainability of the present habeas corpus petition prevails then there would be no need for going into the merits of the second question.
5. Sri M.A. Qadeer, learned counsel, in support of his preliminary objection about the non-maintainability of the present habeas corpus petition has relied upon sub-cl. (3) of Art.226 of the Constitution of India as amended by the 42nd Amendment Act of 1976. Sub-cl. (3) of Art.226 as amended is as under :-
"No petition for the redress of any injury referred to in sub-cl. (b) or sub-cl. (c) of Cl.(1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force."
According to Sri M.A. Qadeer, learned counsel, remedy under the provisions of Guardian and Wards Act is available to the petitioner who had not exhausted the same and therefore she is not entitled to claim the custody of her two infant sons by this habeas corpus petition in view of the bar of sub-cl. (3) of Art.226 of the Constitution. On a cursory reading of Art.226, sub-cl. (3), the preliminary objection of the learned counsel appears prima facie correct, but on a second thought over the emphasis on the words used in sub-cl. (3) "if any other remedy for such redress is provided," it is obvious that in the circumstances of this particular case this objection of the learned counsel cannot prevail.
6. In the instant case the contesting parties are governed by the Hanafi Mohammedan L
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
