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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Javeriya Fatma and Another – Petitioners
Versus
State of Uttar Pradesh and Others – Respondents
Habeas Corpus Writ Petition No. 83 of 2024
Decided On : 30-04-2024
HABEAS CORPUS - CUSTODY OF MINOR - GUARDIANS AND WARDS ACT, 1890; SECTIONS 12, 17; MULLA PRINCIPLES OF MAHOMEDAN LAW; SECTIONS 349, 352, 353 - The court discussed the provisions of the Guardians and Wards Act, 1890, particularly Sections 12 and 17, which empower the court to make orders regarding the custody of minors. The court also referred to the Mulla Principles of Mahomedan Law, specifically Sections 349, 352, and 353, which outline the rights of custody for minors, emphasizing the mother's right to custody until a certain age and the order of female relatives entitled to custody thereafter. The court concluded that the custody of the minor was not illegal as it was with her maternal grandmother, following the death of her mother, and thus the petition for habeas corpus was dismissed.
Fact of the Case:
The petitioner, father of a minor girl, filed a habeas corpus petition claiming that his daughter was in illegal custody of her maternal relatives after the death of her mother. He had initially allowed his in-laws to retain custody but later sought her return, which they refused.
Finding of the Court:
The court found that the custody of the minor girl with her maternal grandmother was not illegal, as the father had voluntarily handed over custody after the mother's death. The court emphasized the importance of the welfare of the child and the legal framework governing custody.
Issues: Whether the custody of the minor girl was illegal and if the writ of habeas corpus could be issued to change her custody.
Ratio Decidendi: The court held that the writ of habeas corpus is not a remedy to challenge custody unless it is shown to be illegal. The custody arrangement was consistent with the applicable personal law and the Guardians and Wards Act, thus not warranting intervention.
Final Decision: The petition for habeas corpus was dismissed as the court found no illegal custody of the minor girl.
JUDGMENT :
YOGENDRA KUMAR SRIVASTAVA, J.
1. Heard Sri Yash Raj Verma, learned counsel for the petitioners and Sri Pankaj Saxena, learned AGA-I appearing for the State-respondents.
2. The petitioner no. 2, asserting himself to be the father of the petitioner no. 1 (corpus), a minor girl child of age about seven months, has filed the present petition seeking a writ of habeas corpus by asserting that the petitioner no. 1 (corpus), is in illegal custody of the respondent nos.4, 5 and 6.
3. Pleadings in the petition indicate that the petitioner no. 1 (corpus), was born on 05.06.2023, and soon thereafter her mother passed away on 14.06.2023. The petitioner no. 2, father of the petitioner no. 1, permitted his in-laws to retain the custody of the newly born infant.
4. It is contended that some time in the month of September, 2023 when the petitioner no. 2 requested his in-laws to return the minor child, they refused to do so. It is sought to be asserted that the respondent nos. 4, 5 and 6 are illegally detaining the petitioner no. 1 (corpus), a girl child, stated to be presently of age about eleven months.
5. The present petition has been filed seeking a writ of habeas corpus for release of the petitioner no. 1 (corpus) from the alleged illegal custody of the respondent nos.4, 5 and 6.
6. A writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody would have to be treated as equivalent to illegal detention for the purpose of granting a writ directing custody of the minor child.
7. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890 [the GWA] and an order with regard to guardianship may be passed under the aforesaid enactment, upon an application filed by a person claiming entitlement.
8. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor.
9. Section 17 of the GWA relates to matters to be considered by the court in appointing a 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 a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA, and insofar as the question of custody is concerned, the rights of parties in the present case, are to be governed by the personal law.
10. 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, 23rd 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. Section 349, as aforesaid, is being extracted below:
11. Further, Section 351 of 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
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