V.P.Mathur, J. - (1.) SMT. Rizwana Begum wile of respondent Sabir Ali has filed this habeas corpus petition on behalf of her 4 years old minor son Shoib alias Shebu. The respondent is her husband.
(2.) THE facts mentioned in the petition are that Smt. Rizwana Begum was married to Sabir on 2-3-82 according to the provisions of Muslim Law and out of this wedlock the petitioner was born. THE respondent, his mother, father and sisters are all very greedy persons and were not satisfied with the dowry that Smt. Rizwana Begum brought. She was, therefore, constantly harassed and tonured. On 11-4-85 her signatures were obtained on a stamp paper on false pretext On 20-4-85 she was taken to Sirathu Tehsil and some document was prepared on that stamp paper and she was asked to sign on it and then she was brought to Sirathu Railway Station where her husband, the respondent, asked her go to her father's place at Allahabad. She was forced to go alongwith the petitioner's sister who was only about one year old and since then she is living with her father. He, however, was not allowed to go with her inspite of her requests. Since then he is living with the father. He is of tender age and has been deprived of the mother's love and affection and is being illegally detained by the father at his house where he is being brutally treated and there is apprehension of his life. No steps have been taken to educate him and thus his future is in dark. Under these circumstances the mother claims on behalf of the minor the custody of the child. Counter affidavit has been filed on behalf of the respondent and the learned counsel for the petitioner gave out that he does not want to file any rejoinder affidavit and the petition may be heard and disposed of on merit. Under these circumstances, both the learned counsel were heard. In the Counter affidavit all other facts relating to the marriage of Smt. Rizwana begum with Sabir Ali are admitted but it is contended that the allegations regarding harassment and torture and also about Smt. Rizwana Begum being brought to Sirathu and preparation of a stamp paper and document are all false On the contrary, the story that is set up is that the fa her of Smt. Rizwana Begum was insistent that Sabir Ali should leave his parent's house and come and stay at Allahabad. He did not agree, therefore, Smt. Rizwana Begum of her own accord and free will came to Allahabad along with her father Mohammad Fazil and willingly left the petitioner with her grant-mother Smt. Rasso. The child is very mucti attached to this lady and, therefore, he also did not go with the mother. It is contended that Sabir Ali is carrying on cultivation in village Jagannath Pur, Tehsil Sirathu. He lives there with his old father and mother and the cultivation is the only source of his livelihood, It is further contended that the father of Smt. Rizwana and her brothers are all of criminal type. It is also contended that Smt. Rizwana in collusion with her father started proceedings under Sections 323 and 504 IPC against her husband, Sabir Ali, and that the case ended in acquittal of Sabir Ali on 30 5-86. In para 8 it is contended that the petitioner is admitted in Primary Pathshala, Udihim Buzurg, Tehsil Sirathu, which is hardly half a furlong from the village of Sabir Ali and where more than a dozen students from the village go to study. The petitioner is attending his class there regularly. He is being properly nourished and nurtured and is looked after by Sabii Ali. In para 11 it is contended that the habeas corpus petition was not maintainable as the provisions of the Guardian and Wards Act could be taken recourse to. In paragraph no, 15 of the counter affidavit, it is said that Smt. Rizwana Begum holds a Pakistani Passport and she wants to go to Pakistan after taking custody of the petitioner where she will settle permanently and remarry with the son of her uncle.
(3.) THE first point to be determined is about the legal maintainability of the petition inspite of the fact that ah alternative remedy under the Guardian and Wards Act is available and can be said to be adequate and efficacious. A similar matter came up for decision before a Full Bench of this Court at Lucknow in the matter of Iqbal Ahmad v. Shaban Ali Khan, 1985 (11) ALR 526. In that case it has been held that even though disputed question of fact may now be involved, under Article 226 of the Constitution of India it is always open to decide the issues of fact which can be determined from the material on record and even though remedy under the Guardian and Wards Act may be available, the writ petition would still be maintainable.;