S. D. Agarwala, J. - (1.) THIS is a Habeas Corpus petition under Article 226 of the Constitution of India filed by four minors ; the first three petitioners, namely, Rayees Ahmad, Anis Ahmad and Saleem Ahmad, are minors, aged 15, 13 and 11 1/2 years respectively, and petitioner no. 4, Km. Nargis, is also a minor, aged 10 years. The ages of the petitioners when they filed the petition in the year 1984, were 13, 11, 9 1/2 and 8 years respectively. Petitioner nos. 1 to 3 have filed the petition through their natural paternal grand father Abdul Zaheer while petitioner no. 4, who is a minor girl, has filed the petition through Smt. Bayiyan, her paternal grand-mother.
(2.) NOTICES of this petition were issued to the mother Smt. Suraiya, respondent no. 1, aswell as respondent nos. 2 to 4 of this petition. Respondent no. 2 is the brother of the mother of the petitioners. Respondent nos. 3 and 4 are the father and mother respectively of the mother of the petitioners, namely, they are the maternal grand parents of the petitioners. Inspite of repeated notices, no counter affidavit has been filed to this petition. Smt. Suraiya Begum, the mother of the petitioners, gave a statement in this Court, which is as under : " My name is Suraiya Begum, I am living with my Children near the house of my father, I have re-married. The applicant nos. 1 to 4 are born from my former husband named Abdul Samad. The Children are living with me and 1 am bringing them up for the last ten years. " In the petition, it has been stated that the father of the petitioners, who was a truck driver, died in an accident on 2nd June, 1975. After the death of Abdul Samad, the late father of the petitioners, their mother shifted to the residence of respondent nos. 3 and 4, who are her parents. It has been further stated in the petition that Smt. Suraiya Begum, the mother of the petitioners, has re-married on 6th November, 1982, to one Rasool Ahmad, and she has started living with him. A copy of the Nikahnama is also filed as Annexure-1 to the petition. It has been further stated that after the re-marriage, the petitioners are detained in the house of Abdul Salam, who is the brother of Suraiya Begum and that no body bothers for the welfare of the petitioners. The petitioners have further stated that respondent nos. 2 to 4 are not even supplying them good fooding, lodging and clothing and, as such, the present petition has been moved for release of their custody from respondent nos. 2 to 4 and for placing them in the custody of Smt. Bayiyan and Abdul Zahoor, the maternal grand-parents of the petitioners.
(3.) SINCE no counter affidavit has been filed nor any body has appeared to contest this petition, the allegations made in this petition have gone uncontroverted. It is not disputed that Smt. Suraiya Begum has re-married. The maternal grandparents of the petitioners are not supplying proper fooding, lodging and clothing to the petitioners. In the circumstances, it has to be considered as to what is the proper order to be . passed in order to protect the rights of the petitioners. In Mulla's Principles of Mahomedan Law, 18th Edition, Section 354, it has been laid down as under : " 354-A. A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody. (1) if she marries a person not related to the child within the prohibited degrees, e. g. a stranger, but the right revies on the dissolution of the marriage by death or divorce. " ;