O.P.Garg - (1.) SMT. Afrin Bano has filed the present petition under Article 226 of the Constitution for a writ of Habeas Corpus commanding the respondents to produce the petitionerArif Ahmad, her minor male child and to direct them to handover his custody to her.
(2.) BRIEFLY stated, the facts of the case are that Smt. Afrin Bano was married to Irshad Ahmadrespondent No. 1 in November, 1991. Out of the wedlock, a male child, namely, Arif Ahmad, the petitioner was delivered. Respondent Nos. 2 and 3 are the father-in-law and mother-in-law of Smt. Afrin Bano. It is alleged that Irshad Ahmadrespondent No. 1, husband of Smt. Afrin Bano fell seriously ill. He along with his wife and the minor male child came to live for treatment at the house of his father-in-law, Zamil Uddin. On 27.4.1996, Irshad Ahmad escaped from the house after committing theft and also kidnapped the minor child. A report was lodged by Zamil Uddin. Notices were sent to Irshad Ahmad to give the minor male child in the custody of Smt. Afrin Bano. Respondent No. 1 is presently residing at Delhi while the respondent Nos. 2 and 3, father-in-law and mother-in-law of Smt. Afrin Bano have shifted to Satna (Madhya Pradesh). It is alleged that under the Muslims Law, Smt. Afrin Bano, being mother and natural guardian is entitled to the custody of the minor son upto the age of 7 years and the respondents have no right to detain the child. According to Smt. Afrin Bano, she has been illegally deprived of the lawful custody of her male child, even though she still continues to be wife of respondent No. 1, as she has neither been divorced nor has remarried with another person. In pursuance of the notices issued to the respondents, appearance has been entered on their behalf. A counter-affidavit has been filed by Abdul Ahmed, respondent No. 2. Smt. Afrin Bano has also filed a rejoinder-affidavit.
(3.) HEARD Sri N. D. Kesari, learned counsel for the applicant and Sri Kamal Krishna, learned counsel for the respondents. Learned A. G. A. has also been heard. It is an admitted fact that Smt. Afrin Bano was married to Irshad Ahmad and that out of the wedlock Arif Ahmadthe petitioner took birth. At the time of filing of the petition, the age of Arif Ahmad petitioner was about 3 years. There is no allegation that Smt. Afrin Bano has been divorced by her husband or that she has remarried with another person. There is no dispute about the fact that the petitioner is presently in the custody of respondent Nos. 2 and 3, who are living at Satna in Madhya Pradesh. It is an indubitable fact that according to Muslim law, Smt. Afrin Bano being mother and natural guardian, is entitled to the custody of the minor son upto the age of 7 years. In this connection, a reference may also be made to paragraph 352, page 324 of Mulla's Principles of Mohammedan Law (16th Edition), in which it is clearly mentioned that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years. The right continues though she is divorced by the father of the child unless she marries a second husband, in which case the custody belongs to the father. Undoubtedly, therefore, Smt. Afrin Bano is the natural guardian being mother of the minor and Is entitled to the custody of minor male child, who is presently aged about 4 years.;