Mohd. Irfan vs State Of U.P. And 2 Others
2014 Latest Caselaw 9816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Case :- 		SPECIAL APPEAL No. - 1015 of 2014
 
Appellant :- 			Mohd. Irfan
 
Respondent :- 			State Of U.P. and 2 others
 
Counsel for Appellant :- 	Suresh Chandra Dwivedi
 
Counsel for Respondent :-	C.S.C., Pankaj Srivastava
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Vijay Lakshmi, J.)

This intra-court appeal arises out of the judgment and order dated 8.10.2014 passed by learned Single Judge in Habeas Corpus Writ Petition No. 12616 of 2014 ( Amal Irfa Vs. State of U.P. and 2 others) whereby the learned Single Judge while allowing the writ petition has directed the appellant, who is the father of corpus -little girl Amal Irfa to hand over her custody to her mother Mrs. Shaista Anjum at the earliest and not later than 15th October, 2014.

At the very outset, learned counsel for the respondent Mrs. Shaista Anjum has raised a preliminary objection regarding the maintainability of this special appeal on the ground that the proceedings in writ of habeas corpus are criminal in nature, so special appeal against it is not maintainable in view of provision of Chapter VIII Rule 5 of Allahabad High Court Rules which specifically bars special appeal against an order of single judge passed in exercise of criminal jurisdiction.

On the other hand, learned counsel for the appellant has submitted that the special appeal is maintainable against such order and that is why the Stamp Reporter has not reported anything against its maintainability.

We have heard learned counsel from both the sides on the point of maintainability of this special appeal.

The writ jurisdiction is an extra ordinary jurisdiction providing a constitutional remedy for enforcement of not only fundamental rights but also for enforcement of any legal right whether civil, criminal, administrative or relating to personal laws. Right to appeal is a statutory right and a person can invoke such right if it is so provided by Statute.

Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 which is reproduced below, provides for special appeal :

"5. Special appeal - An appeal shall lie to the Court from a judgment {not being a judgment passed in the exercise of Appellate Jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act} of one Judge."

A perusal of the aforesaid provision shows that a special appeal will not lie when :

1.the judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the superintendence of the Court;

2.the order made by one Judge in the exercise of revisional jurisdiction;

3.the order made by one Judge in the exercise of the power of superintendence of the High Court;

4.the order made by one Judge in the exercise of criminal jurisdiction;

5.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by the tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;

6. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award by the Government or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the concurrent list in the Seventh Schedule to the Constitution of India."

Hon'ble Supreme Court in the case of Union of India and others Vs. Inderjit Barua and others; 1980 (Supp) Supreme Court Cases 696; has observed that writ of habeas corpus cannot said to be purely criminal in nature. Earlier under Section 491 of old Code of Criminal Procedure, 1898, power was conferred on the High Court to issue writ of habeas corpus. So writ of habeas corpus was treated as a criminal proceeding. However, Section 491 of old Cr.P.C. was ultimately omitted by the new Cr.P.C. of `1973 and there is no provision analogous to it in the new Cr.P.C. After coming into force of our constitution, the scope of writ of habeas corpus become much larger and wider as our Constitution does not make any difference between civil and criminal nature of the proceedings so far as the writ jurisdiction is concerned. Moreover, the present petition relates to the custody of child which is a civil right. A Coordinate Bench of this Court in the case of Riya Singh Vs. State of U.P.; 2011 (89) ALR 779 has observed as under :

"....certain category of special appeals have been excluded from the purview of Chapter VIII, Rule 5 but there is no exclusion with regard to judgment of learned Single Judge deciding a writ petition in the nature of Habeas Corpus. Had the Legislature intended to exclude the said appeal also, the same could have been specifically provided."

Learned counsel for respondent no. 3 could not show any provision under which special appeal against an order passed in the writ of habeas corpus is not maintainable.

Hence, in view of the legal position discussed above, the special appeal against an order passed on the writ petition of habeas corpus, if related to the determination of civil rights, is maintainable.

By means of this appeal, Sri Suresh Chandra Dwivedi, learned counsel for the appellant has assailed the validity and correctness of the order passed by the learned Single Judge on the following grounds :-

1)the order impugned has been passed in complete violation of principle of natural justice.

2)Learned Single Judge has not decided the habeas corpus petition but he has decided the guardianship application which is without jurisdiction.

3)The case laws cited in the impugned judgment are not applicable to the present controversy.

4)According to the Muslim Law, father is the natural guardian of a child. After divorce between the parties, the appellant was maintaining his daughter Amal Irfa (corpus) with the help of his family members. Hence the impugned order is against the law of "Shariyat".

5)The impugned order has been passed without affording any opportunity of hearing to the appellant for rebuttal of the allegations made in the habeas corpus petition.

6)The habeas corpus petition in this case was not maintainable. The petitioner had chosen a wrong forum and instead of filing a case under Guardianship Act, she had filed the habeas corpus petition.

7)The question relating to custody of child could have only be decided under Muslim Guardians Act because both the parties are muslims. But the learned single judge has passed the order without jurisdiction.

8)Smt. Shaista Anjum, ex-wife of the appellant, by means of agreement of divorce dated 10.2.2014 had herself abandoned her rights as she was not interested in maintaining her daughter Amal Irfa, Therefore, she had no right to file habeas corpus petition. However, the learned Single Judge without taking note of the divorce agreement dated 10.2.2014 has passed the impugned order which is liable to be set aside.

9)The habeas corpus petition has been decided by the learned single judge without calling for counter affidavit, therefore, the impugned order is liable to be set aside.

10)There is no such allegation in the habeas corpus petition that Amal Irfa has been illegally detained by the appellant and in absence of illegal detention, the said habeas corpus petition is not maintainable.

We have heard Sri Suresh Chandra Dwivedi, learned counsel for the appellant, Sri Pankaj Srivastava, learned counsel appearing for respondent no. 3 and learned A.G.A. appearing on behalf of respondent nos. 1 and 2 and perused the records.

Briefly stated, the facts giving rise to the controversy involved in this writ petition, are that Shaista Anjum, (the mother) through whom the habeas corpus writ petition was moved, was married to Mohd. Irfan on 2.12.2010. Out of their wedlock Amal Irfa (corpus) was born (who is aged about two and half years at present). Unfortunately, the marriage wrecked on the bedrock of strained relations. The appellant by proclamation thrice as 'Talak', 'Talak, 'Talak' divorced his wife. It has been further alleged in the writ petition that the appellant (respondent No. 3 in the writ petition) with his aides came at the house of the parents of Shaista Anjum, where she was staying. He forcibly obtained her signatures on a fabricated 'Talaknama' and snatched the girl child Amal Irfa from her mother, who made vain attempt to lodge FIR and being unsuccessful moved an application under Section 156 (3) Cr.P.C. before the Magistrate concerned. In the writ petition, it was prayed that the petitioner being an infant in need of care and protection of her mother and the mother being the best qualified to cherish a child during infancy, the respondent no. 3 be directed to deliver the custody of corpus Amal Irfa to her mother.

A perusal of the impugned order shows that the writ court vide order dated 27.2.2014 issued notice upon respondent no. 3 ( here appellant) directing him to file his counter affidavit and also to produce in court his minor daughter Amal Irfa on the next date of listing. The appellant appeared before the writ court through his learned advocate and produced his minor daughter. Sri Irshad Ahmad and Sri Sheikh Moazzam Inam, Advocates filed their power for the Respondent No. 3 on 22.4.2014, but despite the fact that two learned advocates were there to represent the appellant/respondent no. 3 and despite having considerable time and opportunity since 22.4.2014 till 8.10.2014 i.e. about 6 months, he did not file any counter affidavit. Under these circumstances, learned writ court heard both the parties and passed the impugned judgment.

In view of the aforesaid facts and circumstances, we find no force in the argument advanced by learned counsel for the appellant that he was denied of natural justice and no opportunity of hearing or filing counter affidavit was given to him.

The age of the infant girl was only 2 years 3 months at the time of judgment by the writ court. At present too she does not look more than 2½ or 3 years of age. There is no doubt that under Mohammadan Law, the father is the natural guardian but the mother is entitled to the custody (Hizanat) of her child until she attains puberty. This position continues even through the mother is divorced except in cases where she re-marrys.

Amir Alli in Mohammedan Law Volume 11 at page 304 has observed:

"The mother can on no account give up her right of 'Hizanat' for even if she were to obtain a Khula in lieu of abandonment of her right to her child custody Khula will be valid and she will retain a right of Hizanat"

In the case of Syed Saleemuddin Vs. Dr. Rukhsana and others; (2001)5 Supreme Court Cases 247 the Hon'ble Apex Court has held that :

"In an application seeking a writ of habeas corpus for custody of minor children, the principal consideration for the court is to ascertain whether the custody of the children requires that the present custody should be changed and the children should be left in the care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court."

The father (appellant) was summoned by us alongwith minor Amal Irfa in court on 26.11.2014 and he had admitted the fact that after divorce with Shaista Anjum, he had re-married. Thus, on one side there is step mother to look after the child and on the other side the child has the benefit of love, care and affection of her real mother. In a proceeding concerning the custody of a minor, the Courts must have supreme regard to the welfare of the minor as first and paramount consideration and must treat any rights, priorities or preferences of the parents or of either of them or of any other person as subordinate thereto.

Thus, the paramount consideration before this Court is the welfare of the child and keeping in view the welfare of the infant and the fact that admittedly her father has remarried whereas her natural mother has not performed re-marriage, the real mother Shaista Anjum appears to be best person for having the custody and care of the infant girl Amal Irfa. The learned writ court has rightly ordered the father/appellant to hand over the minor child Amal Irfa and we find no good ground to interfere in the said order.

The special appeal is liable to be dismissed and is hereby dismissed. In compliance of the order dated 8.10.2014 passed by the writ court whereby the writ court had fixed the specific date for delivery of child, the interim custody of child Amal Irfa has already been given to her real mother Mrs. Shaista Anjum in the court. The minor Amal Irfa shall remain in custody of her mother till she attains the age of puberty. The appellant Mohd. Irfan shall bear all the expenses necessary for her proper maintenance till she attains the age of puberty. The father shall have the right to visit and see his daughter Amal Irfa once in a month at the house of some common relative which the party may decide with the help of their learned counsel.

Dated : December 11, 2014.

S.B.