IMPORTANT POINT
The welfare of the child is paramount in custody matters, and habeas corpus may not be utilized to examine the legality of custody.

JUDGMENT :

1. Heard Sri Mohammad Sadab Khan, learned counsel for the petitioner, Sri Pankaj Saxena, learned AGA-I appearing for the State-respondents and Sri Suresh Kumar Gupta, learned counsel appearing for the respondent nos.4 and 5.

2. The present petition seeking a writ of habeas corpus has been filed on behalf of the petitioner, a minor of age about seven years.

3. The facts of the case as pleaded in the petition are that the father of the corpus, Mohammad Shan, died in a road accident on 16.07.2020 and thereafter, on 11. 09.2022, the mother, Zubairiya Shan, solemnized a second marriage with one Mohammad Siraj. The petitioner-corpus, at the relevant point of time, was in custody of the respondent nos.4 and 5 (mother and brother of the deceased father of the corpus, respectively).

4. It is sought to be contended that mother had been assured by the respondent nos.4 and 5 that the custody of the petitioner-corpus would be handed over to her in due course.

5. It has been pleaded in the petition that Case No.92 of 2023 (Smt. Zubairiya Shan Vs. Smt. Akhtari Begum and others), under Sections 25 of the Guardians and Wards Act, 1890,[GWA] and Section 7 of the Family Courts Act, 1984, was instituted by the mother of the corpus, seeking her custody, and the same is pending.

6. A counter affidavit has been filed on behalf of the respondent nos.4 and 5 wherein it is asserted that the proceeding under Section 7/10 of the GWA, bearing Case No.250 of 2022 (Smt. Akhtari Begum Vs. Smt. Zubairiya Shan), is pending wherein upon an application by the mother, the Family Court has granted visitation rights as an interim measure.

7. It is not a case of the mother, Smt. Zubairiya Shan, that the custody of the petitioner-corpus, at any point of time, was forcibly taken away from her by the respondent nos.4 and 5. Rather, it is her own case that when her second marriage was solemnized, she on her own, left the petitioner-corpus in the custody of the respondent nos.4 and 5.

8. The law relating to guardians and wards is governed in terms of the GWA and an order with regard to guardianship upon an application filed by a person claiming entitlement may be passed under the aforesaid enactment.

9. Section 17 of the GWA relates to matter to be considered by the Court in appointing guardian and in terms thereof it is provided that the Court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of the minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA.

10. It is common ground between the parties that insofar as the question of custody is concerned, their rights are to be governed by the personal law.

11. The matters relating to "Guardianship of Person and Property" are provided under Chapter XVIII of Mulla, Principles of Mahomedan Law,[Mulla, Principles of Mahomedan Law, 22nd Edition] and Part-A thereof pertains to "Appointment of Guardians". In terms of Section 349, all applications for the appointment of a guardian of the person or property or both of a minor are to be made under the GWA. Further, Section 351 of Mulla, Principles of Mahomedan Law, which is in terms of Section 17 of the GWA, imposes a duty upon the Court in appointing guardian to make the appointment consistently with the law to which the minor is subject, keeping in view the welfare of the minor.

12. The subject matter relating to "Guardianship of a Person of a Minor" is dealt with under Part-B of Chapter XVIII of Mulla, Principles of Mahomedan Law, and the right of mother to the custody of infant children is governed under Sections 352 and 354 thereof, which are extracted below:-

"352. Right of mother to custody of infant children.— The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though