Mohd.Hamid Hussain - (1.) THIS Habeas Corpus petition is by Smt. Imtiaz Bano claiming custody of her two infant sons from Masood Ahmad Jafri and his parents Shafiq Ahmad and Smt. Balun.
(2.) THE admitted facts are that the contesting parties are Mohammedans governed by the Hanafi Law. Petitioner Smt. Imtiaz Bano was married to Masood Ahmad Jafri, respondent No. 1, on 14th July, 1967 and out of this wedlock three sons were born to them. THE youngest son died, but the other two sons, namely, Tariq Shafiq and Tahir Shafiq born on 1-12-73 and 21-12-75, respectively, are alive and at the time of the filing of this petition they were aged about 5 and 3 years, respectively. THE relations: between the husband Masood Ahmad Jafri and his wife Smt. imtiaz Bano got strained and the petitioner Smt. Imtiaz Bano has been divorced by Masood Ahmad Jafri, respondent No. 1 who has taken a second wife. THE assertion of the second marriage by Masood Ahmad Jafri as contained in paragraph 17 of the affidavit of Smt. Imtiaz Bano has not been specifically denied by Masood Ahmad Jafri in his counter-affidavit and in paragraph 16 of the counter-affidavit a vain effort has been made to deny specifically the fact of second marriage. However, Sri M. A. Qadeer, learned counsel for Masood Ahmad Jafri respondent on a specific querry by the Court has made a statement in Court during the course of his arguments that Masood Ahmad Jafri has in fact married another woman. This specific denial or admission of second marriage was essential in order to determine the question of entrusting the custody of the two infant sons in the anxiety of the Court to guard their welfare, Allegations and counter-allegations have been made by the contesting parties as regards the ill treatment meted out to each other. However, this question of ill treatment and strained relations between the petitioner and her former husband Masood Ahmad Jafri is not relevant for the decision of this habeas corpus petition. Only two questions arise in this petition The first is the preliminary objection raised by Sri M. A. Qadeer, learned counsel for respondent No. 1, that this habeas corpus petition is not maintainable and the remedy for the petitioner lies under the Guardian and Wards Act. The second question for consideration is as to whether Smt. Imtiaz Bano petitioner or the respondent Masood Ahmad Jafri is entitled to the custody of their two infant sons in the best interest of their welfare in the circumstances of this case. Needless to say, that if the preliminary objection of the non-maintainability of the present habeas corpus petition prevails then there would be no need for going into the merits of the second question.
(3.) SRI M. A. Qadeer, learned counsel in support of his preliminary objection about the non-maintainability of the present habeas corpus petition has relied upon sub-clause (3) of Article 226 of the Constitution of India as amended by the 42nd Amendment Act of 1976. Sub-clause (3) of Article 226 at amended is as under :- "No petition for the redress of any injury referred to in sub-clause (b) or sub-clause (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force." According to SRI M. A. Qadeer, learned counsel, remedy under the provisions of Guardian and Wards Act is available to the petitioner who had not exhausted the same and therefore she is not entitled to claim the custody of her two infant sons by this habeas corpus petition in view of the bar of sub-clause (3) of Article 226 of the Constitution. On a cursory reading of Article 226, subclause (3), the preliminary objection of the learned counsel appears prima facie correct, but on a second thought over the emphasis on the words used in subclause (3) "if any other remedy for such redress is provided", it is obvious that in the circumstances of this particular case this objection of the learned counsel cannot prevail. In the instant case the contesting parties are governed by the Hanafi Mohammedan Law and the mother is entitled to the custody (Hizanat) of her infant sons up to the age of seven years, and this right of the mother continues even if she is divorced by the father of the child and is lost only if she marries a second husband. In the instant case the dates of birth of the two infant sons Tariq Shafiq and Tahir Shafiq are 1-12-73 and 21-12-75, respectively. On 1-12-1980 Tariq Shafiq will complete his 7 years age, and on 21-12- 1982 Tahir Shafiq will complete his 7 years age. 1 his habeas corpus petition was filed on 6-6-1978 when notice was issued to the opposite parties. If proceedings under the provisions of the Guardian and Wards Act are initiated by the petitioner for the custody of her two infant sons these proceedings and the appeal thereunder will take long time to finally decide the immediate issue of custody. It is common knowledge that such proceedings are prolonged by the interested party on one pretext or the other. Therefore, if by the time the petitioner succeeds in the proceedings under the Guardian and Wards Act Tariq Shafiq may attain the age of 7 years and the claim of the petitioner to the custody of Tariq Shafiq will be lost by that time. More or less similar would be the position with regard to the second son Tahir Shafiq. Therefore, the remedy under the Guardian and Wards Act for the petitioner cannot be said to be an adequate remedy, nor can it be said to be an efficacious remedy. Further, the immediate welfare of the two infant sons is of urgent concern of this Court in the particular circumstances of this case, namely, that respondent Masood Ahmad Jafri has taken a second wife in marriage and that the two infant sons are being kept by the respondent No. 1 with his parents Shafiq Ahmad and Smt. Balun who presently have no locus standi in the lifetime of the parents of the two infant sons. Further, the treatment of step-mother is notorious, so much so that often aggrieved people when express in their resentment to an authority use the phrase that "stepmotherly treatment is being meted out to them.";