D.S. Bajpai, J. - (1.) (Smt.) Mehtab Fatima has presented this petition for a writ of habeas corpus under Article 226 of the Constitution of India praying for production of the petitioners (i) Arsh Mohammad, (ii) Mohd Zainul Abdin, (iii) Khalikuzzama and (iv) Sammo who are stated to be her sons born out of her wedlock with Mohammad Ajmal, respondent No. 1. It has been, inter alia, stated that Smt. Mehtab Fatima had been married to the respondent No. 1. Mohd Ajmal and these four petitioners were born out of that wedlock. Respondents 2 and 3 are father and mother respectively of the respondent No. 1. The four children who are the petitioners and on whose behalf the writ of habeas corpus has been filed are at the moment living with their father, Mohammad Ajmal and the respondents 2 and 3, the grand parents of the petitioner. The parties are Hanafi Muslims and they are governed by the law governing the said class of Muslims. The grounds urged on behalf of the petitioners by the learned counsel appearing for the petitioners were three fold. Firstly it was urged that according to Hanafi law the guardianship of persons ("Hizanat") and duration of minority has been categorised in two stages; firstly the stage since the birth of the child till he completes the age of 7 years and secondly the stage which starts from the completion of 7 years till the termination of minority. It has been stated by Tahir Mohamood in his "Muslim Law of India" 1980 Edition at page 170 that "during the first stage the Hizanat of the minor belongs primarily to the mothers. "At the commencement of the second stage it passes to his father". It has been contended by the learned counsel that in view of the fact that all the four minor children are in the first stage and it is the mother who is legally entitled to the custody of the children. I do not find force in this contention in as much as the words used in the commentary are that the Hizanat of the minor belongs primarily to his mother. The word "primarily" is not a word which can be said to be of no consequence and it connotes unequivocally that in the ordinary circumstances the custody of the minor in the first stage should be given to the mother since the mother is supposed to be more attached to the minor children who have not attained the age of 7 years. Speaking otherwise there is no rule of law that enjoins the custody of the children to be delivered to the mother in all eventualities. If that had been the intention the word 'primarily' would not have been used.
(2.) THE second contention is that the four children who were in the custody of the father and their grand parents were not happy. In pursuance to the directions of this Court the children were produced before an Hon'ble Judge of this Court on 4 -2 -1986 and a perusal of the order -sheet shows as under: The four children named Arsh Mohammad, Zainul Abdin, Khalikulzama and Shamoo were produced in the Court. The youngest one appears to be a baby of about one and a half year although his father says that he is four years old. The other three said that they were happy in living with their father. Thereafter the children were also directed to appear and they were being regularly produced by the respondents before the Court. Yesterday i.e. on 15th October, 1986 arguments of the learned counsel for the parties were heard and prayer was made that the four children (i) Arsh Mohammad, (ii) Mohammad Zainul Abdin, (iii) Khalikuzama and (iv) Samoo who were in the Court be permitted to be approached by their mother, Smt. Mehtab Fatima, who was also present. On being permitted Smt. Mehtab Fatima approached the children and was permitted to stay with them for quite some time in the Varadah of the Court without any let or interference from the respondents. An enquiry was also made from the children about their willingness to stay with their mother or with their father as they chose and they unhesitatingly stated that they wanted to stay with their father even though one of them, Mohammad Zainul Abdin, who was in the lap of his mother stated so categorically that he wanted to stay with his father. On being asked whether they would like to stay with their mother they said 'no' they would like to stay with their father. The second contention of the learned counsel for the petitioners that the children were not happy seems to be unfounded in as much as these four children who are of tender age cannot be expected to be under any duress, threat or coercion more so when even in the presence of their mother they made this statement. The children of tender age are always guided by their feelings as also by their love and affection and by no other consideration. I have no reason to come to the conclusion that the children were not happy and that it was not in the welfare of the children to remain in the custody of the father, the respondent No. 1 or respondents 2 and 3 who it appears, fondly love their grand children. The third submission made was that the children suffered from bad health and that their health was being constantly going down and their general well -being ignored. There is no evidence on record to indicate or support the submission of the learned counsel. Inspite of the fact that voluminous affidavits have been exchanged between the parties. From appearance the children, as observed by the Court in its order of 15th October, 1986, was quite normal and active. A special reference was made to the ailment of one child Arsh Mohammad and on that score the learned counsel for the respondent placed before me the details about the treatment for arthritis being given to him including the report of radiological examination and prescriptions of the expert physician. So far as the illness is concerned it does not appear that it was because of the children's staying with their grand parents or the father. The petitioner No. 1 has fallen ill since nobody can prevent an illness but no case for negligence in getting the child treated is made out.
(3.) A Full Bench of this Court in Habeas Corpus Writ Petition No. 3264 of 1980 Iqbal Ahmad v. Shabban Ali Khan and others : 1985(11) A.L.R. 526, held that "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 - -and E. 624 and Stevension v. Florent, 1925 S.C.R. 522". Their Lordships of the Full Bench were dealing with a case under Mohammedan Law amongst Sunnis (Hanafi Muslims) and custody of the male child was under consideration. The Court ultimately held: In view of the fact that under Mohammedan Law, right of custody (Hizanat) with the mother she is entitled to custody in preference to the father who is a natural guardian but merely because the mother has got right of custody that cannot be taken to mean that even if welfare of the child is with father even then the custody will be with mother; Paramount consideration is the welfare of the minor.;