U.C. Srivastava, J. - (1.) THE reference made by the Division Bench of this Court on 30 -1 -1981 for constitution of a larger bench on the preliminary objection which was raised by the Respondent that writ of habeas corpus was not maintainable as complicated questions of fact averred can only be gone into, in proceedings under Guardian and Wards Act and not a writ petition, has led to the constitution of this Full Bench. The Division Bench was of the view in Writ Petition No. 7296 of 1976 Fakhrunnisan v. Qamar Ahmed now reported in 1980 Lucknow Law Journal 237 that a writ in the nature of habeas corpus was maintainable in appropriate cases two broadly stated questions of law and did not bring about distinction between the cases in which relief may be granted to a Petitioner in a writ of habeas corpus and cases where he may be asked to seek his remedy under Guardian and Wards Act.
(2.) AS the entire case was referred to the larger Bench we heard the entire case and also summoned the minor's mother and the minor before the Court. On 25 -1 -1985 we pronounced the operative portion of the order dismissing the writ petition for reasons to be assigned later on and the same are being assigned now. Briefly stated, the facts are that Smt. Afsan Bano, the mother of the minor through whom this habeas corpus petition has been moved, was married to Javed Khan opposite party No. 2 on 9 -12 -1977. Javed Ahmad Khan is a Lecturer in Government College while Respondent No. 1 his father is a Civil Court employee at Sitapur. In connection with his service Shri Javed Ahmad was posted at several stations including Pithoragarh, Shakti Farm, Nainital and Orai at present he is at Lucknow. Smt. Afsan Bano stayed with her at times at first three stations. Iqbal Ahmad regarding whose name a dispute has been raised is known as Firoz Ahmad in the Institution where he studies and Iqbal Javed at his grand parents' house. The minor was born on 9 -9 -1978 and is now about six and half years old. A daughter was also born from this wedlock on 9 -2 -1980. In that year, it seems, relations between the parties embittered and have now gone to the extent that they have rather become irreconcilable differences. Smt. Afsan Bano resides at Shahjahanpur at her mother's place. The minor was taken to Sitapur by the father but according to the mother he was taken for two days but was brought back to Shahjahanpur because of illness and again he was taken back to Sitapur and thereafter was returned to her when she filed maintenance application but was later on taken away by the father -in -law on a Taxi and the mother failed to get him back On behalf of the opposite parties it has also been stated that the grand -mother would not like to part away with the child as he is the only child in the family being the son of their only issue Javed Ahmad and was voluntarily given by Smt. Afsan Bano to Javed Ahmad at Shahjahanpur. According to the opposite party No. 2 when he learnt that Firoz Ahmadi who was so much attached to his grand -mother could not sleep one particular night and was remembering his grand -mother, he brought him to Sitapar with the consent of Smt. Afsan Bano though in his affidavit in the same; paragraph No. 11 he has used the word that after recovery of Firoz Ahmad he asked his mother to reside with him at Orai. No averment has been made by the opposite parties that the mother voluntarily gave away child to them and with an intention not to take back his custody. An application for maintenance was filed on 7 -9 -1980 but it was decided on 30 -3 -1982 during the pendency of the writ petition. A maintenance of Rs. 100/ - was allowed only to the daughter but the prayer of the mother was refused. The said daughter is now said to be studying at Dehra Dun and staying with the mother's sister. In the maintenance case, an application for medical examination of Smt. Afsan Bano was made and though dubious language was used without any open allegation, but the Munsif Magistrate took it as if the allegation was that she was pregnant because of some relation with some other person, may it be that during oral submission some such thing was said. It may be that the same resulted in aggravation of embittered relationship. Javed Ahmad filed a suit for restitution of conjugal rights on 4 -10 -1980 which was decreed exparte on 4 -10 -1981 i.e. during the pendency of this writ petition. The exparte decree was without any condition even as to the payment of prompt dower to the lady prior to the execution of the decree. An application for setting it aside was moved but the same was dismissed.
(3.) A writ of habeas corpus is a writ of right. If it is for custody of child between parents it can be a writ of course also. In such cases legal principles as to the entitlement of custody will have full say except when the paramount consideration of welfare may clearly require otherwise. The English Courts have consistently held that neither the allegation that the child is under no restraint nor that the child consents to this situation will prevent them from acting on habeas corpus. A reference in this connection may be made only to two cases: (i) R.V. Green Hill, (1836) 4 AE 624. (ii) Stevenson v. Florent, (1925) SCR 532. In Green Hill's case, Coleridge, J. observed, "A habeas corpus proceeds on the facts of an illegal restraint...where the person is too young to have a choice we must refer to the legal principles to see who is entitled to the custody".;