MAHOMEDALLI ALLABUX Vs. ISMAILJI ABDULALI

JUDGEMENT

(1.) Ismailji Abdulali, the father of three children under the age of eighteen, viz., Amina, Hussena, and Mariana, applied to this Court, under the provisions of Section 491 of the Criminal Procedure Code, for an order for the production of the children against Sardar Syedna Taher Saifuddin Mullaji Saheb. A rule nisi was issued for the production of the minors, and when the matter first came on for hearing, Mariam, the youngest of the three sisters, was actually before the Court, and there being no question between the parties with regard to the proper custody of Mariam, the Judge ordered Mariam to be entrusted to the custody of her father.

(2.) On the affidavits it appeared that the other two children were outside the limits of the appellate jurisdiction of this Court, so the Judge allowed the petition, to be amended by making it clear that it was a petition not only under Section 491, Criminal Procedure Code, but also for the common law power of this Court to issue a writ of habeas corpus. Mahomedali Allabux was added as Respondent No. 2 and the rule was served upon him.

(3.) We are not concerned with the facts of the case for the purpose of this appeal. It is only necessary to mention that the petitioner had some time ago handed over the custody of his daughters to the first respondent, and that he was now anxious to get back possession of his children. The rule was discharge against the first respondent, and made absolute against the second respondent, and it was further ordered that he should produce in Court or in Chambers the minors, Amina and Hussena, on January 18, 1926.