http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: GOHAR BEGAM

       Vs.

RESPONDENT: SUGGI ALIAS NAZMA BEGAM AND OTHERS

DATE OF JUDGMENT: 27/08/1959

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. IMAM, SYED JAFFER WANCHOO, K.N.

CITATION:  1960 AIR   93            1960 SCR  (1) 597

ACT:        Habeas  Corpus-Application  for recovery  of  child-Duty  of        Court-Alternative  remedy, if a  bar-Principles  applicable-        Criminal Procedure Code, 1898 (V of 1898), s. 49r.

HEADNOTE: An  unmarried Sunni Muslim mother of an illegitimate  female child  made  an  application under s. 49I  Of  the  Code  of Criminal  Procedure for the recovery of the child  from  the respondents. Held,  that  under  the  Mohammedan Law  the  mother  of  an illegitimate female infant child is entitled to its custody. The  refusal to restore such a child to the custody  of  its mother  would  result in an illegal detention of  the  child within the meaning of S. 49I of the Criminal Procedure Code. A dispute as to the paternity of the child is irrelevant for the  purpose  of the application.  The  Supreme  Court  will interfere with the discretionary powers of the High Court if the discretion was not judicially exercised. Held, also, that before making the order for the custody  of the child the court is called upon to consider its welfare. Held,  further,  that the fact that a person  has  a  remedy under  the Guardian and Wards Act, is no  justification  for denying  him  the  remedy  under  s.  49I  Of  the  Criminal Procedure Code. Held,  further, that in issuing writs of habeas  corpus  the courts  have  power in the case of an infant to  direct  its custody to be placed with a certain person. The  Queen v. Clarke, (1857) 7 E.L. & B.L. 186 and The  King v.   Greenhill, (1836) AD & E. 624, relied on. Zara  Bibi  v.  Abdul Razzak, (1910)  XII  Bom.   L.R.  891; Subbuswami  Gounden v. K. Kamakshi Ammal, (1930)  I.L.R.  53 Mad. 72 and Rama Iyer v. Nata Raja lyer, A.I.R. 1948 Mad. 294, referred to.

JUDGMENT:        CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 11  of        1959.        Appeal  by special leave from the judgment and  order  dated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

      April  30,1958,  of  the  Bombay  High  Court  in   Criminal        Application No. 508 of 1958.        K. M. Desai and 1. N. Shroff, for the appellant.        Ganpat Rai, for respondents Nos. 1 to 4 and 6.        K.L. Hathi and B. H. Dhebar, for respondent No. 5,        76        598        1959.   August 27.  The Judgment of the Court was  delivered        by        SARKAR J.-The appellant is an unmarried Sunni Moslem  woman.        She  has an infant female illegitimate child  called  Anjum.        The  appellant  made  an application to the  High  Court  at        Bombay  under s. 491 of the Code of Criminal  Procedure  for        the   recovery  of  the  custody  of  the  child  from   the        respondents.  That the application was refused.  Hence  this        appeal.        The  appellant’s case is as follows: She is the daughter  of        one  Panna Bai.  The respondent Kaniz Begum is  Panna  Bai’s        sister.  Kaniz Begum, whom it will be convenient to refer as        the  respondent, took the appellant over from Panna Bai  and        brought her up.  Prior to 1951 the respondent had put her in        the  keeping of two persons and had thereby  made  pecuniary        gain for herself.  In 1951 the appellant met one Trivedi and        since then she was been living continuously in his exclusive        keeping.   The appellant stayed with Trivedi at Jabalpur  up        to 1954.  On September 4, 1952, the child Anjum was born  to        her by the said Trivedi.  In November 1953 she bore  another        child to him of the name of Yusuf alias Babul.  In 1954  the        appellant  with  her said two children, her mother  who  had        been living with her, and Trivedi left Jabalpur and came  to        live  in  Bombay.   After  coming  to  Bombay,  Trivedi  for        sometime  lived  with  his relatives as he  could  not  find        independent accommodation. -During this time, the  appellant        with her children and mother stayed with the respondent  who        was  then  living in Bombay, but Trivedi used to  visit  the        appellant  daily  at the, residence of  the  respondent.  In        January  1956  the appellant bore a third child  to  Trivedi        called Unus alias Chandu.  After the birth of Unus,  Trivedi        took the appellant, her mother and the two younger  children        to a hill station near Bombay called Khandala and the  party        stayed  there  for three or four months.  At  the  time  the        appellant  had  gone  to Kandala,  the  respondent  went  to        Pakistan  on a temporary visa and she took the  child  Anjum        with her presumably with the consent of the appellant,        599        After returning from Khandala, Trivedi was able to secure  a        flat  for himself in Marine Drive, Bombay and the  appellant        with  her mother and two sons began to stay with him  there.        In  April  1937 Trivedi moved into another  flat  in  Warden        Road,  Bombay, with the appellant, her two younger  children        and  mother and has since then been living there with  them.        After the respondent returned from Pakistan with Anjum,  the        appellant who had then moved into the flat in Marine  Drive,        asked the respondent to send Anjum to her but the respondent        refused  to  do  so.  Since then  the  respondent  has  been        refusing  to restore the custody of the child Anjum  to  the        appellant.        In  these circumstances, the appellant made her  application        under s. 491 of the Code of Criminal Procedure on April  18,        1958.   She stated that she apprehended that the  respondent        would remove Anjum to Pakistan any day and there was already        a  visa  for  Anjum available for that  purpose.   She  also        stated that in view of the relationship between the  parties        she had not earlier taken the matter to court.  On the  date        of the application the respondent was away in Pakistan.  She

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

      had not however taken the child Anjum with her but had  left        her in her flat at Bombay in charge of her cousin Suggi  and        an  Aya,  Rozi  Bhangera.  The  appellant  stated  that  the        respondent had asked her sister Bibi Banoo and the  latter’s        husband  Mahomed Yakub Munshi to look after the child.   The        appellant  had  therefore made these four persons  only  the        respondents to her application.  Later, on the  respondent’s        arrival  back  in Bombay, she also was made a party  to  the        application.   The other respondents contended in  the  High        Court  that  they had nothing to do with the child  and  had        been  made parties to the application  unnecessarily.   They        have  not appeared in this appeal It is clear  however  that        they did not make over the custody of the child Anjum to the        appellant  when the application was made and the  affidavits        filed by them leave no doubt that their sympathies are  with        the  respondent Kaniz Begum.  The state of Bombay  was  also        ’Made  a respondent to the application, but that was a  mere        matter of form.  The State has no interest        600        in the case and has not taken any part in the proceedings.        The   respondent   opposed  the  application   denying   the        correctness of some of the allegations made in the  petition        of the appellant.  She denied that Trivedi was the father of        the  child Anjum and said that the father was a Shia  Moslem        called  Samin Naqui.  She said that the  appellant’s  mother        had given the appellant to her to: bring up when very  young        as she had not the means to do so herself and since then the        appellant  had been living with her all along and  left  her        flat  in  company  with Trivedi only  during  her  temporary        absence  in Pakistan in 1956.  She denied that she had  made        the  appellant live in the keeping of any person as  alleged        by the latter.  She contended that she had intended that the        appellant would marry and live a clean and respectable  life        but other influences operated upon her and she went to  live        with  Trivedi  as  his mistress.  She denied  that  she  had        prevented  the  appellant access to the child Anjum  as  the        latter stated.  She contended that she was looking after the        child Anjum with great care and solicitude, and had put  her        in  a good school and kept a special Aya for her.  She  also        said  that  she was well off and had enough  means  to  look        after the child well.  She contended that it was not in  the        interest of the child to live with the appellant because she        was  living in the keeping of a man who might turn  her  out        and  she would then have to seek the protection  of  another        man.  She said that she had no child of her own and was fond        of Anjum whom she had been treating as her own child.        The learned Judges of the High Court observed that the  case        raised  various controversial questions specially as to  the        paternity  of  the child, as to whether the  respondent  had        made the appellant live in the keeping of different  persons        and also as to whether she had prevented the appellant  from        having  access  to  the to the child.   The  learned  Judges        observed  that  it  was not the function of a  court  in  an        application  under  s.  491  to  record  findings  on   such        controversial  facts and that, in these  circumstances,  the        proper  forum  for the appellant was to move a  civil  court        under the        601        Guardian  and Wards Act for the custody of the  child.   The        learned  Judges further observed that they were prima  facie        satisfied  that the child was not illegally  and  improperly        detained  by the respondents.  They therefore dismissed  the        appellant’s application.        We  are unable to appreciate the view the learned Judges  of        the High Court.  It seems to us that the controversial facts

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

      referred  to by them were wholly irrelevant to the  decision        of  the  application.   We have not been able  to  find  one        single  fact relevant to the issue in this case which is  in        controversy.   The  facts, which are  abundantly  clear  and        beyond   dispute  are  these.   The  child  Anjum   is   the        illegitimate  daughter  of  the appellant who  is  a  moslem        woman.   The child was at the date of the  application  less        than  six  years’ old and now she is just over  seven  years        old.   The appellant is a singing girl by profession and  so        is  the respondent.  The appellant stated in  her  affidavit        that the respondent was in the keeping of a man and this the        respondent has not denied.  It is not the respondent’s  case        that she is a married woman leading a respectable life.   In        fact she admits that she allowed Trivedi to live in her flat        with  the appellant as his mistress and took money from  him        for  " Lodging and Boarding Charges ". Trivedi has sworn  an        affidavit  acknowledging  the  paternity of  the  child  and        undertaking  to bring her up properly as his own child.   He        is a man of sufficient means and the appellant has been  for        a considerable time living with him as his mistress.         On these undisputed facts the position in law is  perfectly        clear.  Under the Mohammedan law which applies to this case,        the appellant is entitled to the custody of Anjum who is her        illegitimate daughter, no matter who the father of Anjum is.        The respondent has no legal right whatsoever to the  custody        of  the  child.  Her refusal to make over the child  to  the        appellant therefore resulted in an illegal detention of  the        child  within  the  meaning of s.  491.   This  position  is        clearly recognised in the English cases concerning writs  of        habeas corpus for the production of infants.        602        In The Queen v. Clarke (1) Lord Campbell,, C. J., said at p.        193:        "  But  with  respect  to a  child  under  guardianship  for        nurture,  the child is supposed to be unlawfully  imprisoned        when  unlawfully detained from the custody of the  guardian;        and  when delivered to him, the child is supposed to be  set        at liberty."        The  courts in our country have consistently taken the  same        view.   For this purpose the Indian cases hereinafter  cited        may  be referred to.  The terms of s. 491 would  clearly  be        applicable  to  the case and the appellant entitled  to  the        order she asked.        We therefore think that the learned Judges of the High Court        were  clearly wrong in their view that the child  Anjum  was        not  being  illegally or improperly detained.   The  learned        Judges  have ’not given any reason in support of their  view        and  we are clear in our mind that view is unsustainable  in        law.        Before  making the order the court is certainly called  upon        to consider the welfare of the infant concerned.  Now  there        is  no  reason to think that it is in the  interest  of  the        child  Anjum  to  keep her with  the  respondent.   In  this        connection it is relevant to state that at some stage of the        proceedings  in the High Court the parties appeared to  have        arrived at a settlement whereby it had been agreed that  the        child Anjum would be in the custody of the appellant and the        respondent  would  have access to the  child.   The  learned        Judges  of the High Court however were not prepared to  make        an order in terms of this settlement because, as they  said,        " It did not appear to be in the interest and welfare of the        minor  ".  Here again they give no reason  for  their  view.        Both parties belong to the community of singing girls.   The        atmosphere in the home of either is the same.  The appellant        as  the  mother can be expected to take better care  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

      child  than  the respondent.  Trivedi has  acknowledged  the        paternity of the child.  So in law the child can claim to be        maintained  by  him.   She has no  such  right  against  the        respondent.   We have not been able to find a single  reason        how the interests of the child        (1)  (1857) 7 E.L. & B.L. 186: 119, E. R. 1217.        603        would be better served if she was left in the custody of the        respondent and not with the appellant.        We further see no reason why the appellant should have  been        asked  to  proceed  under the Guardian  and  Wards  Act  for        recovering the custody of the child.  She had of course  the        right to do so.  But she had also a clear right to an  order        for the custody of the child under s. 491 of the Code.   The        fact that she had a right under the Guardians and Wards  Act        is no justification for denying her the right under s.  491.        That  is  well  established as will appear  from  the  cases        hereinafter cited.        The learned Advocate for the respondent said, we ,should not        interfere  with  the  order of the High Court as  it  was  a        discretionary  order.  The learned Judges however  have  not        given any reason which led them to exercise their discretion        in  the  way  they  did.  We  are  not  satisfied  that  the        discretion was judicially exercised.        We are clear in our view that the judgment of the High Court        was wrong and should be set aside.        It is further well established in England that in issuing  a        writ  of habeas corpus a court has power in the case  of  an        infant  to  direct its custody to be placed with  a  certain        person.   In The King v. Greenhill (1) Lord Denman,  C.  J.,        said:        "  When  an  infant is brought before the  Court  by  habeas        corpus,  if he be of an age to exercise a choice, the  Court        leaves him to elect where he will ’go.  If he be not of that        age,  and  a  want of direction would  only  expose  him  to        dangers or seductions, the Court must make an order for  his        being placed in the proper custody."        See  also  The Queen v. Clarke (2).  In Halsbury’s  Laws  of        England, Vol.  IX, art. 1201 at p. 702 it is said;        "  Where,  as  frequently occurs in  the  case  of  infants,        conflicting  claims for the custody of the  same  individual        are  raised, such claims may be enquired into on the  return        to a writ of habeas        (1)  (1836) 4 AD & E 624, 640; III E.R. 922, 927.        (2)  (1857) 7 E,L, & B.L. 186; 119 E.R. 1217.        604        corpus, and the custody awarded to the proper person."        Section  491 is expressly concerned with the  directions  of        the  nature  of  a habeas corpus.   The  English  principles        applicable  to  the  issue  of  a  writ  of  habeas  corpus,        therefore,  apply here.  In fact the Courts in  our  country        have always exercised the power to direct under s. 491 in  a        fit  case that the custody of an infant be delivered to  the        applicant: see Rama Iyer v. Nataraja Iyer (1), Zara Bibi  v.        Abdul Razzak (2 ), and Subbuswami Goundan v. Kamakshi  Ammal        (3).   If  the courts did not have this  power,  the  remedy        under  s.  491  would in the case of  infants  often  become        infructuous.        We, therefore, set aside the judgment and order of the  High        Court  and  direct the respondents other than the  State  of        Bombay  to make over the custody of the child Anjum  to  the        appellant.   Let  the child be produced by  the  respondents        before the Registrar, Appellate Side, High Court of  Bombay,        and  the  Registrar  will  than make  over  custody  to  the        appellant.   The  passport  in respect of  the  child  Anjum

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

      deposited in this Court by the respondents may be made  over        to the Advocate on record for the appellant.  The injunction        restraining  the removal of the child Anjum outside  Greater        Bombay will continue till she is delivered to the appellant.                           Appeal allowed.        (1) A.I.R. 1948 Mad. 294.        (2)  (1910) XII Bom, L.R. 891        (3) (1930) I.L.R. 53 Mad. 72.        605