Ravi S.Dhavan - (1.) A widowed mother, Musamat Nusrat Bano, filed the present habeas corpus petition complaining to the Court that her two children Km. Rafat Bano and Km. Siffat Bano, both girls were at the time of the filing of petition, nine years and seven years respectively, have been detained by the children's paternal grand parents and their uncle, her late husband's brother, and she desires the custody of her children.
(2.) THE petition was resisted by the opposite parties first on the academic plea that under Muslim Law the grand parents may have the custody of the children ; that in the present case the mother of the children has married her husband's brother and she has been divorced These submissions on behalf of the opposite parties were examined by the Court On the submission of her second marriage the facts belie the record. The mother has never married her brother-in-law after the death of her husband. The submission of the paternal grand parents is only a subterfuge to deny her access to her children. Further it is now on record that her brother-in-law and uncle to the children got married to one Shayasta Rahman, daughter of Abdul Rahman The other contention of the respondent grand parents was too general and not compatible with the general principle on guardianship under Muslim Law It is correct that if a mother is not available, the custody of the children may go to the grand patents. But this is too sweeping and general a statement so as to become a recognised precedent in Muslim Law. In a developed society, anthropology reveals every personal law based on custom makes arrangements in matters of marriage, guardianship and adoption, and inheritance with exactness and detail. Muslim Law, is no exception.
(3.) THIS is a case of guardianship. The mother is a widow. She has two little girls. The widowed mother has not remarried. What does the personal law for Muslims observe for them ?. There are guidelines on this aspect. These are ; CUSTODY OF CHILDREN 148, "A woman repudiated by her husband is enitled to the custody of her child til) it attains puberty in the case of a body, or in the case of a girl till her marriage followed by consummation 149. If the mother be dead or has remarried, the person next entitled to the custody of the child is the grand-mother ; after her comes the maternal aunt. 150. Failing maternal relations, the right will pass to the child's sisters and paternal aunts ; failing these, to the child's agnatic relations " Handbook of Muslim Jurisprudence, Bakarat-al-Sa'b of Ibn-Abu Zayad, translation by Alexander Devi Russel and Abdullah-al-Ma'- Mun, Subrawardy, Seema Publications Delhi. On this aspect, Professor Asaf A. A. Fyzee quoting another authoritative text by Baillie. records; 'The mother is, of all person, the best entitled to the custody of her infant child during marriage and after separation from her husband, unless she be an apostate, or wicked, or unworthy to be trusted.' Outlines of Muhammadan, Law, N Edition, Asaf A. A. Fyzee, Oxford University Press, Delhi. On the custody of infant children. Islamic law finds a mother. She does not lose custody of her little children only for the reason that she may not remain married to her former husband. Asaf A. A. Fyzee (ibid). But, should she remarry to take another husband, then, the custody of the children begotten between her and her former husband would normally belong to the former husband if he is otherwise fit and proper person to be appointed a guardian of his children. Mir Mohammad Bahauddin v. Mujee Bunnissa Begum, AIR 1952 Mad. 280. On other hand it has also been held that a Muslim woman was entitled to the custody of her children and the fact that she did not live with her husband was not a disqualification. Zynab Bi v. Mohammad Ghouse, AIR 1952 Mad. 284.;