Judgment:
T.N. Singh, J.
1. Pappu is a sweet child, aged about four years, living today with his father. His mother has petitioned this Court for a writ of habeas corpus, claiming custody of the boy. Parties appeared before us and we heard them in camera. Their statements were also recorded. We also tried to talk to the child in camera in the absence of counsel and parties. We reserved order, because we considered it a fit case to be deliberated unfit for instant decision.
2. We confess, we saw light in Veena Kapoor, (AIR 1982 SC 792) and Mohini, illumining for us the path so that we could avoid bricks and breaches. Light also came to us from Shah Bano and Jorden Dienadeh. Petitioner's counsel, Shri Apte, relied on Gohar Begun, (AIR 1960 SC, 93), while Shri A.B. Mishra, appearing for the respondent, relied on two decisions of Allahabad High Court, to which we would advert in due course. Directive Principles of the Constitution, as also emerging international norms of Human Right jurisprudence must inform our vision of law. We looked, therefore, into the Declaration of the Rights of The Child, 1959, adopted unanimously by the United Nations General Assembly. We have tried to heed the mandate of Article 51(c) and Clauses (e) and (f) of Article 39 of the Constitution, indeed without ignoring counsels' reliance on passages from Mulla's Principles of Mahomedan Law, read out to us.
3. First, few facts. Mubarak Hussain alias Bhaiyee, the child's father, who, it appears from the material on record, once had his own carpentry shop, wherein work of building bodies of trucks and buses used to be undertaken. However, for last several years, he is working on wages as a carpenter, though there is some dispute about the corpus of his earning. Before he married Pappu's mother Mumtaz begum, he had another wife, but she deserted him. The second marriage he contacted sometime in 1980 with the petitioner. Pappu was born of the wedlock and three months later the parents parted company. The husband, however, admits that he has contacted third marriage and a child is now born of that wedlock. What we further find from his evidence in this Court and in the Court below is that he lives in a joint family, with his parents and his other brothers, their wives and their children. Pappu is looked after by his sisters-in-law. His aged father is wholly blind and his mother is also aged and infirm. In this Court as also in the Court below, the stand taken by him, indeed in his evidence itself, is that because he has spent money for the upbringing of the child for the last three years or more, he would not like to part with custody of the child. He admits in his evidence that he leaves home for work at 9.00 in the morning and comes back at 9.30 in the night. He has admitted that the petitioner's father is a teacher at Bhopal in Government service, but he has refuted in this Court petitioner's contention that she and her mother also earn Rs. 400/- to 500/- per month. In the Court below, he gave evidence that the petitioner earns her livelihood by 'working on saries' though, in this Court, he denied the statement. Although he took the stand that the petitioner was living with her sister's husband, we found little material to support this contention because he himself admitted in his evidence in this Court that her sister is alive and she lives with her husband.
4. The petitioner has, given evidence to prove her case that she did not come to her parent's house of her own free will. She was maltreated and thrown out and the respondent did not allow her to join him. She served a notice on her husband for the custody of the child and took to court proceedings eventually, which had been dragging for last four years. She has not remarried as she wanted to keep the child with her. She was not prepared to go back to the respondent to live with him as she is apprehensive of continuous maltreatment. Her father earns a salary of Rs. 1,000/- per month, while she and her mother also earn respectively Rs. 400/- and 500/- monthly. She lives with her parents and they are prepared to help her to bring up the child as there is nobody else in the family to be maintained. It appears from the order dated 7-10-1985 (Annexure 'A'), passed by the Civil Court that on 1-10-1983, the mother had served a notice on child's father for his custody. The Court recorded the finding that he was entitled to the custody of the child, but dismissed the suit as not maintainable, taking the view that an application for that purpose had to be filed under the Guardians and Wards Act in the Court of the District Judge.
5. We must not fail to record also our impression of the child, to whom, we talked, rather tried to talk, alone in a tension-free atmosphere. He is indeed a child of very tender age, but his eyes still betrayed a vacant look, suggestive of emotional starvation. He could not answer our questions and was also unable to express his preference for any of the parents. Considering the facts and circumstances of the case, after hearing the parents as also the child, we have found ample material to take the view that at this age, the child needs motherly love and affection, more than anything else, if his future is not to be jeopardised. The environs in which he is being now brought up, according to us, is wholly unsuited to his mental growth and development. The father hardly finds time even to talk to him, leaving the house in the morning and returning quite late in the evening when the child would be in bed. There are 7 to 8 children in the house in the family and it is natural that their parents would look first to their own children. As a result, Pappu is naturally likely to have little or lesser attention from them. His step-mother, who has a sucking baby of her own, would also, definitely, have little time for him. The child's grandparents, admittedly, being physically handicapped, also cannot do anything for him. In such circumstances, the child may grow up only as a stranger in his own house, uncared and unloved. It may have an abiding adverse effect on his personality as he will grow up without knowing the tenderness of love and affection, being himself deprived of parental love and care. Indeed, sociologists and criminologists alike take the view that an emotionally starved child may, in due course, develop criminal propensities.
6. Relying on two Allahabad decisions, Shri A.B. Mishra, appearing for the respondent/father, forcefully pressed the contention that we have no jurisdiction to deal with the matter as proper remedy for the petitioner/wife has been legislatively provided and recourse to the provisions of Guardians and Wards Act being open to her, we must dismiss the petition. However, in our view, the contention stands emphatically negatived by, what is stated by the Apex Court in Gohar Begam (supra) and in Veena Kapoor (supra), reported respectively in AIR 1960 SC 93 and AIR 1982 SC 792 as in both cases, the question was of custody of a minor and the prayer for habeas corpus was not only entertained, but finally allowed in one case. It has been authoritatively held in Gohar Begam (supra) that existence of the right to relief under the Guardians and Wards Act could not be a ground to deny the mother the custody of the child to which she was entitled under the Mahomedan Law. It is true that relief was granted under Section 491, Cr.P.C. (old), but the power and jurisdiction of the High Court to issue a writ of habeas corpus under Article 226 of the Constitution is still wider and indeed, this Court can validly examine the question whether any person was 'illegally or improperly detained in public or private custody', which power the old Cr.P.C. (under Section 491) also vested in the High Court. The basic features of the English Writ of Habeas Corpus still retain their pristine form and colour because the Writ is in terms named in the Constitution though the qualifying words 'of the nature of', appearing in Articles 32 and 226, are used deliberately, indeed only to indicate that the relief may be suitably moulded by the Court to suit the facts and circumstances of the case. Paragraph 1469 of Halsbury's Laws in England, (Vol. 11, 4th Edition) speaking of the ancient as also the extant law emphatically declares that 'A parent, guardian or other person who is legally entitled to the custody of a minor can regain that custody when wrongfully deprived of it by means of the writ of habeas corpus'. Indeed, the celebrated decision in the Barnardo case 1892 AC 326, concerning child's custody, has received the approval of our apex Court in Sebastian Hongray, AIR 1984 SC 571. That apart, we must bear in mind the distinction between the question of 'custody' and 'guardianship'. In a petition for a writ of habeas corpus, this Court is not at all concerned with the question of appointment of any guardian or of his rights and duties and the enforcement thereof, though it is still concerned with the question of 'welfare' of the minor when this Court is petitioned for his or her custody. That is what we read in Veena Kapoor (supra), wherein the respondent's defence that his custody of the child not being illegal, relief had to be refused to the petitioner, was summarily rejected. It has also to be said that this Court acted under Article 32 of the Constitution and asked for a report from the District Judge who was required to make an inquiry into the question of 'welfare' of the minor because there was no material before this Court to reach a positive and affirmative conclusion on the question, for finally deciding the matter.
7. Now, the Allahabad decisions. We may at once say that the decisions, being rendered on the question of 'guardianship' and being concerned with legality of an order passed in a proceeding under Guardianship and Wards Act, have little relevance to the instant lis. In Mt. Siddiqunnisa, AIR 1932 All 215, the Division Bench observed that the word 'guardian' is used in the Act in a very wide sense and does not necessarily mean a guardian duly appointed by the Court. However, Suleman, C. J., also expressed the view that Muslim Personal Law had been abrogated to the extent laid down in the Act. In that case, the mother of the minor girl had died a few days after her birth and the tussle for her custody was between the father and the maternal grandmother of the child. The Court held that the father did not incur disqualification to have her custody merely due to remarriage. In the second case, Hasmat Ali, AIR 1971 All 260, a learned single Judge took the view that under Mahomedan law, the mother is entitled to the hizanat or custody of her male child until he has completed seven years and that her right continues though she is divorced, unless she marries a second husband. The application by the mother under the Guardianship and Wards Act was held not maintainable on the footing that she was not a 'guardian' of the minor and her remedy lay in a suit. We may, however, refer to paragraphs 352 and 354 of Mulla's Principles of Mahomedan Law (18th edition), cited at the Bar. While para 352 supports the view expressed in Hasmat Ali (supra) on the question of mother's entitlement to custody of the minor, we find the disqualifications stated in para 354 of which, we extract the relevant sub-paras 2 and 4:
'(2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or;
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(4) if she neglects to take proper care of the child.'
8. Evidentally, the short question for our consideration in this case is whether the petitioner should be deemed to have lost her right to the custody of the child merely because she is not residing with her husband, the father of the child. In his annotation, on para 354, Mulla has referred to judicial exposition of the rules obtaining in Pakistan, as regards mother's disqualification. The reported decisions cited support the view that Courts there have expressed preference for the paramount consideration 'welfare of the minor', rather than following strictly the letters of the rules. The learned commentator has quoted Rizvi, J. who, in Bavi v. Shah Nawaz Khan, P.L.D. (W.P.) Lahore 509 observed :
'The principle of Muhammadan Law as regards hizanat is fundamentally based on this fact that it is for the welfare of the minors to live with their guardians as directed under the law.'
9. Following the judicial dicta in Shah Bano's case AIR 1985 SC 945, buttressed in Jorden Diengdeh, AIR 1985 SC 935, we are bound to construe teleologically and humanistically sub-para (2) of para 354, above-referred. It was held in Shah Bano that the statement of law in text books like Mulla's Mahomedan Law and Tyabji's Muslim Law may be inadequate to meet challenges thrown by the contemporary society. Indeed, the need for judicial activism in the field stems from State's failure to implement the Constitutional mandate of Article 44. We may also state here the judicial sanction under written in Pathumma, AIR 1978 SC 771, 776, Minerva Mills, AIR 1980 SC 1789, 1850 et al. for construing any law in the light of Directive Principles. We refer immediately, therefore, to Clauses (e) and (f) of Article 39, which obligate the State to take steps to ensure, inter alia, that 'the tender age of children are not abused' and that 'children are given opportunities and facilities to develop in a healthy manner' so that 'childhood and youth are protected against exploitation and against moral and material abandonment.' Again, drawing strength and authority from Article 51(c) we proceed to quote relevant portion of Principle 6 of the Declaration of the Rights of The Child, 1959 :
'The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.......'.
In Principle 2 of the Declaration, there is a mandate for enactment of laws for 'special protection' of the child to enable him to 'develop physically, mentally, morally, spiritually and socially in a healthy and normal manner' postulating further that in this matter 'the best interests of the child shall be the paramount consideration'. Principle 4 envisages the right for the child to have 'adequate nutrition, housing, recreation and medical services'.
10. Having laid out the norms and nuances of the progressive interpretative technology, sanctioned by the Constitution and our judicial mantors, as also noting the judicial exposition in comparable jurisdiction, we propose to re-read the aforequoted sub-para (2). In our view, the mother of the child shall not suffer disqualification to have custody of the child for the mere fact that she is not residing with her husband, the child's father. If there exist circumstances to show that it was difficult for her to reside with her husband or that she had not forsaken voluntarily her husband's company, she should not be penalised. That apart, importance must be attached to the main rider, namely, she resides 'at a distance from the father's place of residence'. Indeed, we must read the underlying meaning of the rider. Even if the mother must have custody of the child of the tender age, till he attains the age of 7 years, the father must not be denied access to the child. When personal laws are divinely sanctioned, a presumption will naturally arise that such laws have a humanistic content because when great seers, saints and prophets found any faith, they act as benefactors of the mankind as a whole, if man is God's child and if child is the father of the Man, no personal law claiming divine sanction, can afford to deny paramount consideration to the welfare of the child. It is not difficult, therefore, to see why the Declaration was unanimously adopted by the United Nations General Assembly in 1959.
11. We have already referred to the materials on record to indicate circumstances under which the petitioner has been residing separately, but not at a distance from her husband's (or the child's father's) place of residence. They both live in the same town, Gwalior. It cannot be said, therefore, that she has forfeited her right to the custody of the child Pappu though she may lose her right if she is found to neglect to take proper care of the child when the child is restored to her. custody. Accordingly, we hold that for welfare of the child, who is aged only 4 years and is in dire need of motherly affection and love, the custody of the child Pappu must be restored to his mother, the petitioner. In her evidence in this Court, she has stated that the father will not be denied access to the child and indeed, we are also making a direction in that regard, following the lead of our mentors. Even in a guardianship proceeding, a Hindu mother was given custody of an 11-year old boy to protect the minor's welfare in Mohini, AIR 1977 SC 1359, but the District Judge was required to oversee 'promotion of the welfare of the minor'.
12. In the result, the petition is allowed. We direct the respondent Mubarak Hussain to produce the child Pappu in the Court of District Judge, Gwalior, on 17th February, 1986, who shall entrust the custody of the child to the petitioner Mumtaz Begam, mother of the child Pappu. The respondent shall have reasonable access to the child and in the event of the petitioner's default in any manner to comply with this direction, it shall be open to the respondent to apply to District Judge, for appropriate/orders. It shall also be open to him to watch the child's upkeep and progress and should he have any grievance of child's neglect by the petitioner, he may apply likewise for appropriate orders to the District Judge. Before parting with the records, we also proffer the pious wish that the child Pappu may, in due course, become the effective means to restore normal conjugal relations between the estranged couple. Therefore, we would like to make it clear that though our order does not debar appropriate guardianship proceeding at appropriate time, we hope, no occasion will arise for such an event lest the child becomes a thorn in the flesh of either parent instead of exuding fragrance like a flower to heal raw and ruffled feelings on both sides. We also do not say anything about maintenance for the child, for which, separate proceeding may be taken by the petitioner, if so advised. No costs.