Mother Seeking Maintenance Not Fit to be Guardian Custody to Father

ORDER

1. This is a habeas corpus petition under Art. 226 of the Constitution of India, praying that the opposite parties be directed to produce the petitioner, Master Zubeen and to set him at liberty.

2. The facts, as they are revealed from the petition, are that on 16-4-1980, Firdous Jahan, who is the mother of the minor. Master Zubeen aged about 10 years, was married to opposite party No. 2, Abdul Wali alias Kalim Khan at Lucknow. Afler the marriage both of them lived at the house of opposite party No. 2 at Malihabad. On 1-5-1983 when Master Zubeen was about one months old only the opposite party No, 2, Abdul Wali alias Kalim Khan turned out the mother of the minor. Firdous Jahan, from his house. The mother of the minor, Firdous Jahan, with the child, came to Kanpur and started residing with her mother at 145, Chandra Nagar, Police station Chakeri, Kanpur. The minor was studying in school at Kanpur and the examination of the minor, Master Zubeen took place in April. 1983. The opposite party No. 2 Abdul Wali alias Kalim Khan came to Kanpur in 1985 and stayed with his wife, Firdous Jahan. for about 6 months but no maintenance was paid by the opposite party No. 2. Thereupon, Firdous Jahan filed an application under Section 125, Cr.P.C. for maintenance for herself, minor Master Zubeen and his younger brother which was allowed on 10-2-1987 by the Principal Judge, family court, Kanpur. By that order a sum of Rs. 150:-per month was awarded as maintenance. The opposite party No. 2 merely paid Rs. 16,00/-. Thereafter the opposite party No. 2 filed a case under S. 25 of the Guardians andWards Act in the court of Principal Judge, family court, Lucknow for the custody of the minor, master Zubeen. This case was finally decided on the basis of the compromise between the parties in the Lok Adalat on 7-7-1991. In terms of that compromise the entire family was to live at Lucknow and opposite party No. 2 Abdul Wali alias Kalim Khan was directed to main tain the family as a guardian. The Lok Adalat did not pass any order for the custody of Master Zubeen to opposite party No. 2, Abdu! Wali alias Kalim Khan. The opposite party No. 2 did not comply with the order of the Lok Adalat and he did not come to reside at Lucknow. Thereafter an application for execution of the order dated 7-7-1991 was moved before the Principal Judge, family court, Lucknow. On 1-2-1993 when Master Zubeen was going for his studies, opposite party No. 4. the Station officer of Police Station Chakeri, Kanpur forcibly took away the child to Police Station, Chakeri where the minor failed to identify the opposite party No. 2, his father. Thereafter on 22-2-1993 at about 1 a.m. when the minor Master Zubeen was studying in the class, the opposite party No. 4, the Station officer of Police Station Chakeri again came and took the minor to the Police Station. It was told that an order has been passed in the execution case for the custody of the minor. Thereafter the custody of the minor. Master Zubeen was handed over to the opposite party No. 2 before the family court, at Lucknow. The order passed by the opposite party No. 1, Principal Judge, family court, Lucknow, is wholly illegal and without jurisdiction and the custody of the minor with opposite party No. 2 is illegal and wrongful. The life of the minor in the hands of the opposite party No. 2 is in danger and his siudies will be affected.

3. The opposite party No. 2, Abdul Wali alias Kalim Khan file a counter affidavit alleging therein that from the very beginning the attitude of his wife was bad and was unbecoming of a good house wife, but he had to cope with the situation. After the birth of the child his wife left his house along with the minor child and moved an application under S. 125, Cr.P.C. at Kanpur for maintenance. As the mother of the minor did not appear in the court on the date fixed the same was dismissed for default on 25-9-1984. Thereafter his wife came and started living with him. But she again left house in the year 1985 after saying that she will return after the engagement of her sister. An application unde S. 125 Cr.P.C, was again moved by her at Kanpur before the Metropolitan Magistrate. An ex parte order was passed in that application which fact came to be known to opposite party No. 2 only when a recovery warrant was issued against him. Against the ex parte order the opposite party No. 2 filed first appeal before the High Court wherein a direction was issued to opposite party No. 2 to deposit Rs. 1600/-, i.e. half of the amount claimed. Thereafter the application was finally decided on 11-1-1990 and the same was dismissed. Opposite party No. 2 thereafter filed a suit for restitution of conjugal rights on 20-1-1988 which was decreed on f 1-3-1989. Thereafter a case under Section 25 of the Guardians and Wards Act was filed by the opposite party No. 2 on 22-8-1990 before the principal Judge, family court, Lucknow, which was decided by Lok Adalat. In terms of the order passed by the Lok Adalat, it was incumbent upon the mother of the minor child to live with opposite party No. 2, but the mother never came to his house and did not hand over the custody of the minor child. Thereafter execution proceedings were initiated. The order passed by the Principal Judge, family court, Luknow for restoration of the minor child to opposite party No. 2 was got executed by the opposite party No. 4, Station officer, Police Station, Chakeri Kanpur.

4. Learned counsel for the parties have been heard. Learned counsel for the petitioner has argue that the custody ofthe child with opposite party No. 2 is illegal because in the order passed by the Lok Adalat, it was not mentioned that the custody of the child be delivered to the opposite party No. 2. He has further argued that the family court had no jurisdiction to pass this order and it is an illegal order. He has further argued that in absence of any order to this effect the action of the opposite party No. 3 in getting the child delivered to opposite party No. 2 is also illegal. According to the lerned counsel as the custody of minor with opposite party No. 2 is illegal, therefore it should be handed over to the mother of the minor. A preliminary objection has been raised by the learned counsel for the opposite party No. 2 that this habeas corpus writ petition is not maintainable because ihe custody of the minor child with opposite party No. 2 cannot be said to be illegal as the custody of the child was delivered to the opposite party No. 2 by the court. This preliminary objection raised by the learned counsel for the opposite parlies has force. In the habeas corpus petition under Art. 226 of the Constitution of India, the court has to see as to whether the custody with the opposite parties is legal or not. Unless the custody of the person is illegal the Court declines to interfere in such matters. The order of Lok Adalat was passed on 7-7-1991, a perusal of which goes to show that the parties have compromised the matter and both the parties have decided to live together at Lucknow. It was further ordered that the husband will maintain the wife and the minor child. It was further observed in the IIIrd para that in view of the terms of the application under S. 25 of the Guardians and Wards Act, the opposite party No. 2 was appointed as guardian of the person and property of the minor. There was no order for delivery of the minor child from the custody of his mother to opposite party No. 2. The compromise which formed the basis of this order is Annexure No. 1 to the petition. In this compromise it is no where mentioned that the custody of the child shall be delivered to the opposite’-party No. 2, According to the learned counsel for the petitioner the custody of the child was not ordered by the court, but it was the office which wrongly drafted the order which was sent to the police for execution and in that order it was mentioned that the custody of the minor child should be given to opposite party No. 2. Annexure 5 to the petition is the order which was sent to the Station Officer, Police Station Chakeri, Kanpur. It is dated 16-l-1993. In the last para of this order, it is mentioned that the custody of Master Zu-been, minor should be delivered to his father Abdul Wall alias Kalim Khan, opposite party No. 2. According to the learned counsel for the petitioner this portion has been wrongly introduced in this order and by virtue of this direction which was issued to the police the custody of the minor child has been given to opposite party No. 2. On the basis of these facts it is argued that the custody of the minor child with opposite party No. 2 is not legal. No doubt it is true that by means of a wrong direction to the police, the custody of the minor child has been delivered to opposite party No. 2, but the question which has to be considered is as to whether the custody of the minor with opposite party No. 2 is illegal. Naturally the answer will be in the negative. Because it cannot be said that the opposite party No. 2 snatched away or has illegally detained the minor child as the minor child has been given in his custody by the police on the basis of an order which was received by it. If a wrong custody had been given by some order of the court or in execution of a particular order of the court then the remedy to the mother of the minor child was with the Superior Court. An appeal or revision could have been filed by the mother to show that the custody of the minor child has been wrongly handed over to opposite party No. 2 and that order could have been set aside by the higher court. The remedy of filing a habeas corpus petition in this Court was not to be availed in such cases.

5. Therefore, in view of the facts of this case it cannot be said that the custody of the minor, Master Zubeen, with opposite party No. 2 is illegal and the habeas corpus petition is not maintainable.

6. Learned counsel for the parties have also argued the matter on merits and even on merits the petitioner has no case. The Court proceeds to examine the merits of the case so that the controversy may be finally resolved at this stage.

7. It has come in the earlier part of the judgment that the wife of opposite party No. 2 moved an application under Section 125, Cr.P.C., claiming maintenance from opposite party No. 2. The application is Annexure C-3 to the counter affidavit of opposite party No. 2. This fact goes to show that the mother of the minor is not in a position to maintain herself as well as the minor child. A similar question arose before this Court in the case of Shoeb Ahmad v. Shakeel Ahmad, (1993 LLJ 16). There also the custody of the child was refused to be given to the mother on the ground that mainenance had been granted to her. In such case the principle is that the welfare of the child is the paramount consideration as has been held by the Hon’ble Supreme Court in a number of cases. It is not necessary to burden this judgment with all those authorities. The welfare of the child is to be kept in mind while allowing the custody of the child. Cases have come to the Courts where the custody of the minor child has been refused to the mother when the child was neglected or deserted by the mother for a long time and the child was brought up by maternal grandfather or maternal grandmother (vide Ravi Kant Keshri v. Krishna Kumar Gupta, HVD (All) 1992 (1), 258 : (AIR 1993 All 230). Even the custody of the child was refused to the mother where she had filed the petition after three years of her leaving her maternal home deserting her eleven months old child. The child was in the custody of her father. The custody was refused to the mother on the ground that the child did not even recognise his mother (vide Smt. Renu v. Ravi Vaid, AIR 1982 Madh Pra 81), Therefore, on, consideration of the fact that an application for maintenance under S. 125, Cr.P.C. was moved by the mother of the minor child, it is clear that she is not able to maintain herself. If the mother is not able to maintain herself then how can she maintain the minor child. The welfare of the minor is not safe in the hands of such a mother who cannot maintain herself. The child can neither be brought up nor properly educated or his necessary needs fulfilled by the mother in such circumstances. The child has to be provided with certain facilities and amenities during the childhood in order to develop him into a good person. The mother has no facilities with her and as such bringing up the child by the mother cannot be up to that standard which is required in such cases. The welfare of the child can be better looked by the father and the interest of the minor child also demands that he should remain with his father who is in a position to maintain him, educate him and to build him a good citizen. Therefore, even on merits the mother cannot be granted the custody of the minor child. If she wanted to have the custody of the minor child then she should have moved the proper court for custody of the child. The forum by means of a habeas corpus petition under Art. 26 of the Constitution of India, cannot be made available to her for custody of the child.

8. The writ petition is, therefore, dismissed. There will be no order as to costs.

9. Petition dismissed.

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