AMAR SARAN, J. - (1.) HEARD Sri Santosh Srivastava, learned Counsel for the petitioners and Sri N.I. Jafri, learned Counsel for Opposite Party No. 3.
(2.) A habeas corpus petition had been filed by Zakiya Khatoon for the custody of her minor son Hanjila, who was detained by his father, Rafi Ahmad. Orders were passed by Hon'ble M.P. Singh, J. on 5 -4 -2004 for production of Hanjila subject to the petitioner depositing Rs. 2,000/ - as costs within a week. The said sum had duly been deposited by the petitioner. After bailable warrants and other coercive measures, the child was produced before me on 12 -10 -2004 by his father Rafi Ahmad, O.P. No. 3. On that date I had passed the order directing opposite party No. 3 to hand over the custody of the child, Hanjla, to his mother, Zakiya Khatoon, and directed the parties to reappear before me on 28 -10 -2004. This order was passed overruling the vehement objections by Sri Jafri, that the child would be traumatized if his custody was changed at this stage, as the child did not even recognize his mother now, and that the child's opinion be sought before handing him over to his mother, as the child was an intelligent boy of 5 -1/2 years, who would be able to indicate the parent whose custody he would prefer. This Court had however proceeded to hand over the child to the mother for a period of 16 days on 12 -10 -2004 till the conclusion of the Dusshera vacations on a trial basis as an experimental measure for ascertaining whether the child would be able to adjust to his long separated mother. The opinion of the child was not taken, as the Court was of the opinion that as the child had been separated from his mother when he was only a few days he would in all likelihood not even be able to recognize his mother, and it was not unlikely that he may have been tutored to give a statement in favour of his father and against his mother. When the child was handed over to his mother, he did raise a hue and cry. But the Court chose to ignore the wailing of the child, as the Court was of the opinion that the love of a mother for her child is irreplaceable and can have no substitute, and that she would indeed succeed in winning over the heart of her child, if there was no fault or shortcoming in her love. However while handing over Hanjila to his mother, and directing his production in Court again on 28 -10 -2004 the Court had verbally directed the parties to strictly comply with the orders of the Court, and requested the Counsel to come forward with suggestions how best to ensure the welfare of Hanjila. It is gratifying to note that the parties and their Counsel have appreciated the Court's orders in its true spirit.
(3.) IN pursuance of the Court's order Zakiya Khatoon has again come to Court today with the child. The father of the child, Rafi Ahmad, opposite party No. 3, is also present. Both parties are behaving in a very co -operative and civil fashion, and the usual tension which ensues in Courts when battles are fought for custody of a child is conspicuous by its absence in this case. I think the Counsel for the parties are also to be complemented for this situation, as they must have given sane advice to their clients.;