Full Judgment
V.S. Sirpurkar, J.
1. This is an unfortunate writ petition by one S. Noorjahan, wife of one Sadhik Batcha. The said Noorjahan is admittedly the wife of Sadhik Batcha. Sadhik Batcha is presently not in India. He has reportedly gone to Dubai. The case pleaded before us is that the first respondent was married to the petitioner on 14.11.1995, wherein some dowry was given and thereafter the said Sadhik Batcha, the first respondent went to foreign country. The petitioner claims that during the absence of her husband, she was tortured by her mother-in-law and brother-in-law for dowry and even after the first respondent returned back from the foreign country, the demand persisted and in pursuance of the same, she was turned out from the house and asked to bring Rs. 50, 000/-. When she failed to bring the amount from the parents' house, she was attacked by her husband and beaten, while the second respondent Zakir Hussain also beat her. She was therefore, required to go home and stay with her parents. It is contended that on the very day, her two years old child was snatched from her and thereafter, she was not allowed to see the child at all. She tried to see the child, but without any success. It is then pointed out that she had given a complaint against her husband and a crime was registered on that basis under Sections 498-A, 323, 294(b) and 406 I.P.C., but to no effect. It is then pointed out that the petitioner was not even being allowed to meet the child.
2. Notice was sent. After a number of attempts to serve the respondents, with great difficulty, the respondents came to be served ultimately.
3. Today when the matter is taken up for hearing, one Sheik Alauddin and Noorul Huda have appeared with the child. It seems that these two persons have no relation with the child and there is no claim to that effect also, though it is stated at the bar that the said lady is a cousin of the first respondent. The first respondent as well as the second respondent are conspicuously absent. It is represented that the first respondent has gone to Dubai in December 2002 and for the whole one year, he was not there. Under such circumstances, it is not understood as to how the child was allowed to be in the custody of some other persons, who are not even said to be the distant relatives of the first respondent and that is clearly impermissible. The custody of Mohammedan girl, who is hardly 2 1/2 - 3 years old with a distant relation could always be an illegal custody, unless it is permitted by a natural parent. The natural parent, admittedly, has gone out to Dubai for the last one year. The petitioner would have every right to have her child in her custody, particularly when the child is a Mohammedan girl of the tender age of 2 1/2 years. In that view, the petition is allowed. In our presence, the child was handed over to the mother. The petition is thus allowed. Rule is made absolute.