Point of law: It is clear from the position of law as it stands that so far as the custody of a minor child is concerned, the mother is entitled to it until the child is of tender age, unless there be a clear disentitlement inferable. This right of the mother to the child's custody is not based on the personal law of parties alone, but on a well acknowledged principle arising from human nature -and if this Court may dare say from the animal nature of man -that the mother is best oriented to look after the welfare of her infant or young child. The mother has always been regarded to be best equipped to take care of the needs of a young child, and secure his/ her welfare compared to a father. This right of the mothers is subject only to known exceptions, like her marriage to a stranger or the mother living a demonstrably immoral life. The mother's right is so well established, that in case of a minor of tender years, any other relative holding the child in his/ her custody while the mother is around, would be unlawful custody. Of course, the principle would not apply if the mother is disentitled under some reputed exception

JUDGMENT :

1. This petition asks for the issue of a writ of habeas corpus ordering respondent nos. 2,3 and 4 to produce the detenue-petitioner no. 1, Aisha before the Court and to set her at liberty by giving her into the custody of the second petitioner, Abdul Azeem @ Mohd. Azeem, her father and natural guardian.

2. It must be remarked here that respondent nos. 2 and 3 are police officers who are not claimed to be holding the minor in their custody. The relief is, therefore, substantially sought against respondent no. 4, Smt. Umme Alisha d/o Abid Hussain, who is Abdul Azeem's estranged wife and the minor's mother. The 5th respondent, Abid Hussain is Smt. Umme Alisha's father, Abdul Azeem's father-in-law and the minor's grandfather (maternal). In substance, thus, a writ is prayed to be issued against the minor's mother at the instance of her father who claims the mother's custody to be unlawful.

3. Heard Sri Alok Kumar Srivastava, learned counsel for the petitioner, Sri Adil Jamal who appears for respondent nos. 4 and 5 and Sri Gyan Prakash, learned State Law Officer appearing on behalf of the State-respondents.

4. The facts in the backdrop of which this petition has arisen are these: Abdul Azeem, the second petitioner and Smt. Umme Alisha, the 4th respondent were married according to Muslim rites on 28.10.2016. The couple were blessed with a child, a baby girl on 04.09.2018. She has been introduced hereinbefore as Aisha. It is said that Smt. Umme Alisha and her husband Abdul Azeem could not get along together. They parted ways with Smt. Umme Alisha moving out of her matrimonial home. She went back to her parents and is staying with them. The parties have turned an estranged couple. An FIR also appears to have been lodged by Smt. Umme Alisha on 08.02.2019 against her husband, Mohd. Azeem, her father-in-law, Mohd. Saleem, Mohd. Shanoo and Mohd. Naseem, both brothers-in-law (jeth) and Neha @ Baliga, sister-in-law (nanad) complaining commission of offences by them punishable under Sections 498-A, 323, 506, 306, 511, 467, 468, 471 I.P.C. and Section 3/4 D.P. Act. It was registered as Case Crime No. 21 of 2019 at P.S. Colonel Ganj, Kanpur Nagar. There is another FIR lodged by Smt. Umme Alisha against Mohd. Azeem, her husband, her father-in-law, Saleem and one unknown offender reporting offences punishable under Section 323, 354B, 452, 504, 506 I.P.C. and Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, P.S. Colonel Ganj, District Kanpur Nagar. This FIR was lodged on 27.09.2019. Mohd. Azeem has filed a suit for restitution of conjugal rights against Smt. Umme Alisha that has been numbered as Case No. 1287 of 2019 on the file of the learned Principal Judge, Family Court, Kanpur Nagar. It also appears that the location of Smt. Umme Alisha's maternal home and her parents place is a walking distance. The parties are enmeshed in a quagmire of legal proceedings. They have turned utterly warry of each other. The mother holds the parties’ child in her custody and the father has no access to the child. It is in the back drop of these facts that the father has moved this Court for a writ of habeas corpus, seeking his minor daughter's custody.

5. It is Mr. Alok Kumar Srivastava's submission that according to the personal law of parties that would govern the right to guardianship and custody, the father is the natural guardian. Both parties are Muslims and by their personal law natural guardianship of a minor is with the father. Learned counsel submits that in the father's presence and the parties being estranged, the mother is obliged to handover the minor child into her father's custody.

6. Mr. Adil Jamal on the other hand says that the father may be the natural guardian under the personal law applicable to the parties but under that law, a mother, notwithstanding the right of the father, is entitled to a minor girl's custody till she attains the age of puberty. Mr. Adil Jamal says that the right to hold custody under the