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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (Crl.) 888/2011 & Crl MA 7241/2011 (for stay)
Shahid Khan ..... Petitioner
Through: Mr. Saurabh Suman Sinha, Advocate
Versus
Anjum Pasha & Ors. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE G. P. MITTAL
ORDER
% 15.06.2011
1. The petitioner by this petition of habeas corpus seeks production of
his son stated to be aged over 7 years from the custody of his ex-wife and
her brother and mother impleaded as respondents. It is the case of the
petitioner himself that the child is in the custody of mother at Hyderabad
since May 2009.
2. It has been enquired from the counsel for the petitioner as to how this
petition would be maintainable in as much as a habeas corpus petition
cannot be a substitute for a proceeding seeking guardianship of the minor
child .
3. Counsel for the petitioner has referred to Gohar Begum Vs. Suggi
AIR 1960 SC 93 in para 10 whereof habeas corpus petition was held to be
maintainable for the reason of the respondent in that case having no legal
right to the custody of the minor child. Reference is also made to para 357
of Mulla Principles of Mahomedan Law 16th Edition laying down that the
father is entitled to custody of a boy over seven years of age. Reference is
further made to Smt. Farjanabi Vs. Sk. Ayub Dadamiya AIR 1989
Bombay 357 in para 6 whereof it was observed that under the Muslim law,
by which the parties hereto are governed, the father is entitled to custody of
son over seven years of age. It is thus contended that the respondent mother
has no right to the custody of the minor and the petitioner being entitled in
law to custody is entitled to enforce the said right through this petition for
habeas corpus.
4. We are unable to agree and are unwilling to entertain this habeas
corpus petition to adjudicate competing claims of the petitioner as father and
respondent as mother to the custody/guardianship of the minor son and
which adjudication shall necessarily entail questions of suitability and best
interest of minor.
5. The Supreme Court in Gohar Begum (supra) was concerned with a
case where the respondent had no legal right to custody. Such is not the
position here. Mulla itself states that there is no rule of Mahomedan law
that the father is entitled to custody even if he is unfit and that the court has
power to appoint mother or any other person as the guardian of the minor if
the father is unfit to be a guardian.
6. The Bombay High Court in Farjanabi was not concerned with a
habeas corpus petition.
7. Counsel for the petitioner faced with the aforesaid has contended that
it is for the respondents to, upon being noticed, to take plea of the petitioner
father being unfit to have custody/guardianship of the minor.
8. We are not inclined to issue notice even in view of the aforesaid and
especially when the child is in custody of respondent mother for last over
two years.
9. Writ petition is accordingly dismissed with liberty to the petitioner to
approach fora competent to adjudicate guardianship/custody matters.
CRL MA7240/2011 (for exemption).
Allowed, subject to just exceptions.
RAJIV SAHAI ENDLAW, J
VACATION JUDGE
G. P. MITTAL, J
VACATION JUDGE
JUNE 15, 2011
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