Rajasthan High Court - Jodhpur

Rahisuddin Khan vs The State Of Rajasthan ... on 12 September, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:40787-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Habeas Corpus Petition No. 249/2025
Rahisuddin Khan S/o Umardeen Khan, Aged About 64 Years,
Resident Of Kaviraj Ji Ka Bara, Inside Sojati Gate, Jodhpur (Raj.)
----Petitioner
Versus
1. The State Of Rajasthan, Through Secretary, The Ministry
Of Home Affairs, Rajasthan Jaipur.
2. The Commissioner Of Police, Police Commissionerate,
Jodhpur.
3. The Deputy Commissioner Of Police (East), Police
Commissionerate, Jodhpur.
4. The Station House Officer (Sho), Police Station Sadar
Bazar, Jodhpur Metro.
5. Smt. Sehra Khan D/o Sultan Khan, Resident Of Patliputra
Nagar, Fareed Building, Room No. 702, Building No. 3/c
Horizone, New Link Road, Oshiwara, Jogeshwari West,
Mumbai (Maharastra), Presently Residing At Malwani Gali
No. 6, Room No. 609, 6Th Floor, Malad West, West
Mumbai (Maharastra)
----Respondents

For Petitioner(s) : Mr. CP Soni
Ms. Sarita Devi Soni
For Respondent(s) : Mr. Deepak Choudhary, AAG assisted
by Mr. KS Kumpawat, AAAG
Mr. Manish Vyas for respondent No.5

HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
JUDGMENT

REPORTABLE Reserved on: 01.09.2025 Pronounced on: 12.09.2025

1. Instant writ petition has been filed by the petitioner under

Article 226 of Constitution of India, for issuance of writ in the

nature of habeas corpus with the prayer that the respondent-State

authorities from 1 to 4 be directed to produce the Corpus namely

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a minor boy Jakwan Khan @ Rakan, his grand son, and be free

from the illegal and wrongful confinement of respondent No.5. The

prayer of the writ petition is reproduced as under:-

"(i) That the grandson of the petitioner corpus namely Jakwan Khan @ Rakan may be got freed from the illegal or wrongful confinement of private respondent no.5 and official respondent no. 1 to 4 may kindly be directed to produce before this Hon'ble Court and also directed to be given custody of the minor child as the petitioner is already having in previous time, also taking care of future of the minor child.

(ii) That the official respondents may also be directed to deal with the respondent no.5 with heavy hands for kidnapping the minor child Jakwan Khan @ Rakan from the lawful custody of the petitioner by taking strong action against herself looking to the conduct and offence committed by herself.

(iii) That any other order or direction which this Hon'ble Court may deem fit and proper looking to the facts and circumstances of the case may also kindly be passed in favour of the petitioner."

2. The present writ petition was filed by the petitioner-

Rahisuddin Khan on 30.06.2025 and the Coordinate Bench of this

Court issued notices to the respondents on 01.07.2025. The

learned GA-cum- AAG Mr. Deepak Choudhary appearing on behalf

of respondent Nos. 1 to 4 sought time to file reply. By order dated

24.07.2025 SHO Police Station Sadar Bazar, Jodhpur Metro was

directed to produce the Corpus on the next date of hearing. On

18.08.2025, the Corpus was presented along with his mother i.e.

respondent No.5 against whom the petitioner grandfather has

alleged that the child is in her illegal custody. On 21.08.2025, this

Court heard learned counsel for the petitioner on the

maintainability of the present habeas corpus petition as the minor

male child is with biological mother i.e. respondent No.5. During

the course of arguments, this Court raised specific query to

counsel for the respondent Mr. Manish Vyas regarding

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(documents filed by the petitioner) annexure 2 which is in

respect of second marriage performed by respondent No.5 with

one Mohammed Ujair Ansari S/o Mohammed Jubair Ansari and

annexure 3 dated 22.05.2019, a complaint made by Sabir Khan,

brother of respondent No.5- Sehra Khan, to the Marriage

Registrar, Andheri West, Mumbai, by which he requested the

authorities not to register the illegal marriage of his sister i.e.

respondent No.5. He also requested the authorities to keep this

letter, annexure 3, in the record and not to register the illegal

marriage as the same was done forcibly (without consent of

parents). On being specifically asked to answer the stand of

respondent No.5 in respect of above two annexures which are 2

and 3, the learned counsel for respondent No.5 Mr. Manish Vyas,

completely denied these documents and stated that no such

marriage was performed by respondent No.5 and those

documents are not authentic rather fake. As he did not file any

response to the habeas corpus petition, therefore, this Court

asked, whether, he wish to counter the documents by filing the

reply to the writ petition or wish to argue orally, the learned

counsel Mr. Manish Vyas, then sought three days time to file

reply.

In pursuance to the same, the learned counsel filed an

additional affidavit of respondent No.5 Sehra Khan on 26.08.2025.

Thereafter, the matter was listed before this Court on 28.08.2025.

Learned counsel for the petitioner Mr. CP Soni, on receiving the

additional affidavit, then sought three days time to file counter to

the additional affidavit. The request of the counsel for the

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petitioner was accepted and the matter was posted for hearing on

01.09.2025.

On 01.09.2025, the petitioner filed the counter affidavit to

the additional affidavit. The petitioner along with his counter

affidavit also filed counter affidavit of the father of the Corpus

namely Rizwan Khan S/o Rahisuddin Khan although he is not a

party in the present petition. There is no request on behalf of the

petitioner Rahisuddin Khan to implead his son Rizwan Khan as the

petitioner or the respondent in the present case and without being

party in the present petition he cannot filed any such the counter

affidavit in respect of the allegation as levelled against him by

respondent No.5. This Court is not taking the counter affidavit of

Rizwan Khan, on record, as he is not a party to the petition,

however, considering the peculiar facts of the case, we would refer

to his affidavit, if it is so found necessary, for adjudicating the

present issue as he was present before this Court on all the

hearings and this Court also interacted with him in camera

proceedings, to understand the complexities in their relationship,

point of disputes and other factors so as to decide the present

controversy.

On completion of pleadings, this Court heard the learned

counsels for respective parties finally on 01.09.2025 and

judgment was reserved.

On the basis of the pleadings and arguments as advanced by

the respective counsels, the brief facts of the case are that the

marriage of son of the petitioner namely Rizwan Khan was

solemnized with respondent No.5 Sehra Khan on 25.12.2006, and

out of the wedlock a male child was born on 10.11.2012 who is

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minor and presently aged about 13 years. The marriage certificate

dated 20.01.2010 of Rizwan Khan (son of the petitioner) and

respondent No.5 is annexure-1 of the petition. According to

petitioner, the respondent No.5 left the matrimonial house in the

year 2016, leaving the minor child Jakwan Khan @ Rakan with

him. Petitioner submitted that there was no matrimonial dispute

between the husband (Rizwan Khan) and respondent-wife and

therefore, there is no civil or criminal case from either side lodged

or pending in any Court from the date of marriage i.e. 25.12.2006

till today.

3. After leaving the matrimonial house and neglecting her

obligation as the wife, the mother and daughter-in-law, the

respondent-wife without any divorce in accordance with Law did

second marriage with one Mohammed Ujair Ansari S/o Jubair

Ansari on 21.05.2018 in Mumbai. The said "nikahnama" was

noterized on 05.06.2018, which is annexure-2 of the writ

petition. According to the petitioner, the second marriage, as

visible from the anenxure-2, done by the respondent No.5 on

21.05.2018, was not in their (petitioner and his family)

knowledge, however, same was in the knowledge of the

parents and other family members of respondent No.5. The

petitioner further submitted that as the nikah was performed on

21.05.2018 without the consent of the family members, therefore,

her real brother namely Sabir Khan made a written complaint

dated 22.05.2018 (Annexure-3) (the very next day) to the

Registrar of Marriage, Marriage Registration Department, Anderi,

West Mumbai, which being relevant, is reproduced as under:-

     "                              From:
                                                   Sabir Khan


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                                                    Brother of Sehra Khan
                                                    702,3/C, Patliputra
                                                    Nagar
                                                    Link Road, Oshiwara
                                                    Jogeshwari (west)
                                                    Mumbai-400102
                                                    Mobile No.9821643938
        To:
        The Marriage Registrar
        Mariage Registration department
        Municipal Corporation of Gr. Mumbai
        K west ward office
        Andheri west
        Mumbai-400058

Subject: Do not register the marriage of Sehra Khan & Mohammed Uzair Ansari residing at Baig Mohammed Building Ground floor, Room No.11, bapu rao Jagtap Marg, Agripada, Mumbai-400011 Sir/Madam, This is for your kind information:-

One Mr. Mohammed Uzair Ansari have threatened and pressurised to my sister Sehra Khan and performed marriage in the court whereas my sister Sehra Khan is already married and have got 6 years old son namely Rozan. Mr. Mohammed Uzair Ansari have pressurised my married sister and threatened with dire consequences and forcibly put my sister under pressure and trouble and get married. thus Mr. Mohammed Uzair Ansari have done illegal marriage with my married sister. Mohamed Uzair is a bad characterstic man.

I want to request your honour do not register their illegal marriage in your office if they come to your office for Registration of marriage. Please put this letter in your record and do not register their marriage because it is illegal marriage/forcible marriage without consent of parents.

I request your honour to please take stern action against Mr. Mohammed Uzair Ansari for cheating and black mailing my married sister. Note: If the above person or his relatives come to get register their marriage to call us immediately on 9821643938 Thanking you, Yours faithfully,

Sabir Khan Brother of Sehra Khan"

According to the petitioner, the second marriage as

performed by respondent No.5 was without the permission and

consent of the family members and also without dissolution of her

first marriage with Rizwan Khan (the first husband). The petitioner

further also informed this Court that the respondent No.5 i.e.

Sehra Khan gave a hand written letter to the police authorities in

Jogeshwari West, Mumbai, dated 25.05.2018, accepting her fault

of doing second marriage with one Mohammed Ujair Ansari. She

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also stated that her second marriage dated 21.05.2018 is in

violation of Muslim Law and now she regret for the same

and would close all her relationship with Mohammed Ujair

Ansari. This letter of respondent No.5 as given to police

authorities which bears the Government seal, being relevant, is

reproduced as under:

"702&3lh ikVyh iq= vks"khoVk tksxs"ojh ¼osLV½ eqEcbZ 102 lsok esa] Jheku~ egksn; flfu;j iksfyl dfe"uj lkgc eSa lgsjk [kku vius iqjs gks"kks gokl esa c;ku nsrh gwa fd esjk dN fnu igys ,d yMdk ftldk uke eks- mtj vulkjh gSA mlds lkFk esjk I;kj dk fjys"ku cuk vkSj ge us dksVZ esa tkdj nksuks us "kknh dh tks fd xSj dkuwuh gS D;ksfd esjh igyh "kknh 12 lky igys fjtoku [kku ls tks/kiqj esa gqbZ gSA fjtoku [kku ls eq>s ,d yMdk Hkh gSA tks fd 6 lky dk gSA D;ksfd fjtoku [kku dks fcukcrk;s esus "kknh mtj vulkjh ls dh gS tks dh eqlyhe ykW ds rgr xSj dkuwuh gS eSus 21 ebZ dks eks- mtj vulkjh ls dksVZ eas tkdj "kknh dh gS tks fd xSj dkuwuh gS vc eq>s bl xyrh dk i"rkok gqvk gS blfy;s esa lgsjk [kku ;s c;ku vius iqjs gks"kks gokl esa ns jgh gwa eas eks- mtSj vulkjh ls viuk tks Hkh fjys"ku "kh?kz vkt gh iqjs rjhds ls [kRe djrh gwa vkSj esa eks mtSj vulkjh ls dgrh gwa fd eq>s esjs ftrus Hkh dkuwu isij nLrkost MksD;wesaV eq>s okil yksVk nsA vkSj esa ;s Hkh dgrh gwa fd vkt ds ckn esjk eks- mtZj vulkjh ls dksbZ Hkjh fdlh Hkh rjg dk dksbZ fjys"ku ugh gS dksbZ fj"rk ugh gS vkSj uk eq>ls feyus dh dksf"k"k djs vxj eks] mtSj vulkjh us eq>s fdlh rjg ls CySdesy ;k fdlh rjg ls Mjk;k ;k /kedk;k rks esa eks- mtSj vulkjh ij dkuwu dk;Zokgh d:axh eq>s ;k esjs igys ifr fjtoku [kku dks fdlh rjg dk ;k esjs iqjs ifjokj dks fdlh Hkh rjg dk dksbZ uqdlku igwapk;k rks mldk ftEesnkj eks- mtSj vulkjh gksxkA vkSj ;s tks Hkh dqN gqvk mldh ftEesnkj flQZ esa gwaA"

Despite the above letter dated 25.05.2018, the respondent

continued her married life with the person Ujair Ansari as his wife.

Out of the wedlock a child was also born in the year 2020. The

petitioner further submitted that the second marriage did not last

for long and as appears from additional affidavit she divorced the

second husband namely Mohammed Ujair Ansari S/o

Mohammed Jubair Ansari (after staying with husband from

May 2018 to November 2022). As the minor child- Jakwan

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Khan @ Rakan was left with the petitioner, the grandfather, in the

year 2018 by respondent No.5, therefore, from 2018 to

30.05.2025, the child remained with him who was provided the

best education in a reputed english medium school of Jodhpur.

The child also had some speech problem therefore, the petitioner

also provided speech therapy treatment through specialist doctor

and therapist in Jodhpur, as informed to this Court during camera

interaction.

Till 30.05.2025, the petitioner was taking care of the minor

child in a peaceful manner and there was no complain, no FIR, no

custody application or any application under Guardians and Ward

Act, 1890 by the respondent No.5. There was a complete

abandonment and neglect of the minor child by the respondent

No.5 from 2018 to May, 2025. Surprisingly, without any

information and without the consent of petitioner and information

the child was kidnapped by the respondent No.5 on 30.05.2025

around 07:00 p.m. When the child could not be traced, the

petitioner reported the matter to the local Police Station, Sadar

Bazar, Jodhpur Metro on which the FIR bearing No. 67/2025 dated

31.05.2025 for offence under Section 137(2) BNS, 2023 was

registered against the respondent No.5. The contents of the FIR

which is annexure 5 of the writ petition is reproduced as under:-

"lsokesa Jheku Fkkuk vf/kdkjh lkgc iqfyl lnj Fkkuk tks/kiqj tks/kiqj fo'k;: esjs iksrs dk vigj.k gks x;k gSA egksn; th] fuosnu gS fd eSa jghlqn~nhu [kku iq= mejnhu [kku mez 64 o'kZ tkfr eqlyeku fuoklh dfojkt th dk ckM+k lkstrh xsV ds vanj tks/kiqj esjk iksrk jdoku [kku mQZ iq= fjtoku [kku dk vkt fnukaad 30-5-2025 dks yxHkx "kke dks 7 cts ds rdjhcu ?kj ds ckgj [ksyrs gq, dk ftldk vigj.k lsgjk [kku iq=h lqYrku [kku us vigj.k dj fy;k gS o mlus gesa Qksu djds crk;k Hkh fd eSa ysdj (Uploaded on 12/09/2025 at 12:25:05 PM)

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tk jgh gwaA eksckby uacj 7977021065 ls Qksu djds crk;k o xqejkg dj jgh gS fd esjs ikl gS ysdj vkrh gwa exj ugha vkbZ vyx&vyx txg viuh crkrh gS vkSj gesa xqejkg dj jgh gS esjs iksrs dks ys xbZ gS blds f[kykQ dkuwuh dkjZokbZ djsa o esjh vkSj ls eqdnek djsa o dkuwuh dkjZokbZ djsa tks yksx lkFk esa feys gq, gSa muds f[kykQ dk;Z djsaA Hkonh;

jghlqn~nhu [kku"

4. Though the petitioner lodged the named FIR immediately

against the respondent No.5 however, no co-operation was

provided and no prompt action was taken for recovery of the child

from respondent No.5 by the local police, therefore, a complaint in

this regard for fair investigation was also made to Deputy

Commissioner of Police, Police Commissioner Jodhpur on

20.06.2025 as respondents No. 4 failed to recover the child who

was kidnapped by respondent No.5.

5. The learned counsel Mr. CP Soni submitted that conduct of

respondent No.5, being a mother, due to the facts as noted from

Annexures 2 and 3 above, needs further examination by the

Hon'ble Court. Therefore, he further submitted important dates in

this regard which are very important for deciding the writ petition.

The respondent No.5 left her matrimonial home in 2018 and

within few days she had a love affair with a stranger known as

Mohammed Ujair Ansari and by concealing her love affair and

relationship not only with her in-laws i.e. the petitioner and his

son Rizwan (husband of the respondent No.5) but also with her

own family members. Her registration of marriage was seriously

objected by her brother by a hand written complaint dated

22.05.2018 and three days thereafter i.e. after 22.05.2018, she

by a letter dated 25.05.2018 (date recorded on the basis of

the Government seal on the document) accepted her conduct

and also stated that she would close all relationship with the

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person Mohammed Ujair Ansari with whom she performed the

second marriage. The surprising fact, as learned counsel Mr.

CP Soni pointed out, that though the letter dated

25.05.2018 was given to the police authorities but she

continued to stay with her second husband Mohammed

Ujair Ansari and a child was also born out of the second

marriage in the year 2020 namely Mohammed Danish. After

spending more than four years in the second married life,

respondent No.5 again without any knowledge and

information of her in-laws, though not required in the

present facts and circumstances, also dissolved her second

marriage by "khulanama" dated 03.12.2022.

According to learned counsel for the petitioner from May

2018 to November 2022, as appears from the documents as

available on record, she enjoyed her second matrimonial life and

was taking care of her child-Danish from the second marriage as

noted above. The learned counsel further pointed out that the

additional affidavit containing the "khulanama" is printed on

stamp paper dated 22.11.2022, however, this document is

neither notarized nor registered. Learned counsel Mr. CP

Soni, seriously questioned the authenticity of this

document and submitted that it appears that by purchasing

a stamp paper of back date, this document has been

prepared so as to bring strength to her right of possession

of the minor child in the present case. The learned counsel on

the basis of the conduct of respondent No.5 submitted that she is

disqualified to have the custody of the child in terms of Section

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354 of the Mullas Principles of Mohamden Law (20 th Edition).

Section 354 is reproduced as under:-

"Section 354. Females when disqualified for custody: female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody-

(1) if she marries a person not related to the child within the prohibited degrees (section 260-

261), e.g., a stranger, but the right revives on the dissolution of marriage by death or divorce; or, (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or, (3) is she is leading an immoral life, as where she is prositute; or (4) if she neglects to take proper care of the child."

By referring to the provision of Section 354, learned counsel

Mr. CP Soni submitted that Section 354(1) disqualifies the

respondent No.5 to have the custody of the minor child. Therefore

to strengthen her case she prepared the "khulanama" dated

03.12.2022 which is seriously doubtful as it appears to have been

prepared in back date to justify the custody of child with her.

Further it does not bear the signatures and names of any

witness which creates serious doubt its authencity.

According to him this further leads to conclusion that illegal

second marriage with Mohammed Ujair Ansari still subsists

and therefor, in terms of Section 354(1) she is disqualified

to have the custody of the minor child.

In terms of the overall conduct of the respondent No.5 from

2018 to 2025, learned counsel submitted that the complete

case falls under Section 354 (4), as respondent No.5, the

mother seriously neglected her first child from the first

marriage and left him alone in the custody of the grand

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father i.e. the petitioner herein at the age of six years

(child born in 2012). The mother left the child without any

reason, family dispute etc. at the age of six years when a

child starts going to school. According to petitioner in the

initial school education and school life and even for other

reasons also mother is the first person who takes care of

the child more than anyone else including the father. The

petitioner submitted that on the one hand the respondent No.5

without any reason left the matrimonial house in 2018 and on the

other hand his own son Rizwan Khan was doing business and

working in Doha, Qatar and earning livelihood and therefore, he

despite being the grandfather of the child performed all the

duties of mother and father in the best possible manner.

Petitioner submitted that his family is well educated, disciplined

and well reputed family in the society where one of his son is a

doctor. Being financially sound, he was concerned for providing

best education to the child and that he provided to the minor child

Jakwan Khan @ Rakan, in the present case since beginning.

From 2018 to 2025 he did everything for the welfare of the

child which includes providing best education, best medical

facility, love and affection and did whatever he could do to the

best of his abilities for the welfare. The child was happy and was

growing fairly in the peaceful and congenial environment. On one

hand, despite being grandfather, he performed all his obligations

and on the other hand respondent No.5, the natural mother,

completely neglected her own first child without any justified

reason because according to him (petitioner) she was more

interested in her joys, enjoyment and illegal second marriage

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because immediately after leaving the matrimonial home at

Jodhpur in the year 2018, she did second marriage by having the

love affair with the person Mohammed Ujair Ansari in a secret

manner by concealing her relationship even with her own family

members. Therefore, she is neither committed to her own

matrimonial family members nor to the petitioner's family

which includes her husband and the minor child. An

irresponsible, negligent and selfish person like the respondent

No.5 cannot, in such circumstances, at all, said to be qualified in

terms of Section 354(4) to have the custody of the minor child.

According to learned counsel Mr. CP Soni, Section 354(4)

puts complete bar on her qualification and therefore, the

petitioner is rightly entitled to have the minor child with him which

he was having from 2018 till 30.05.2025. Regarding his son

Rizwan Khan's second marriage, the petitioner through his counsel

submitted that after being deserted by wife-respondent No.5 from

2018 to May 2025, his son performed the second marriage.

According to him the minor child is happy with his second mother

and the entire family was living in peaceful and happy conditions

(up to 30.05.2025) which is good for well-being of the child.

Petitioner further submitted that the second wife of his son also

accepted the child and gave true love and affection to the child

and to support this bonding certain photographs were also shown

to the Court by learned counsel for the petitioner which visibly

shows a good bonding and love and affection between the new

mother and the minor child Jakwan Khan @ Rakan. The

petitioner further submitted that even when his son Rizwan

Khan has done the second marriage still he only would take

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care of the child to the best of abilities and would be fully

responsible for the welfare and proper upbringing of the

child.

6. The learned counsels for the petitioner Mr. CP Soni along

with Ms. Sarita Devi responded to the question of maintainability

of the present habeas corpus petition as filed by him who is not

the biological father rather is a grand-father. The petitioner was

also asked, before the beginning of the arguments, as to why he

has filed DB Habeas Corpus Petition and no application under

Guardians and Wards Act, 1890 was filed. The learned counsel for

the petitioner submitted that the above submitted peculiar facts of

the case would demonstrate the conduct of respondent No.5 who

is natural mother and who intentionally neglected her only child

from the first marriage which she performed with his son-Rizwan

Khan. As she left the minor child in 2018 and completely

neglected the child, therefore, in terms of Section 354(4) she is

disqualified to have the child in her lawful possession. He further

submitted that after she left the child with him in 2018 and up to

30.05.2025, he was peacefully and properly taking care of the

minor child however, without any custody proceedings under the

Act of 1890 or any effort from respondent No.5 and without

informing the petitioner and any of his family members, the minor

child was kidnapped from the house on 30.05.2025 around 07:00

p.m. in the evening. However, after taking away the child she

informed telephonically that she is taking away the child, it is only

thereafter the named FIR was lodged against her. According to

learned counsel, as the respondent No.5 is disqualified in terms of

Section 354(4), therefore, she has no right to have the custody of

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the minor child. It is further stated that the petitioner, only for the

welfare and protection of liberty the minor child, approach this

Court under Article 226 of Constitution of India for issuance of writ

in the nature of Habeas Corpus as there is no other efficacious

remedy. To support the arguments on the maintainability issue,

the learned counsel relied upon the judgment passed by the

Hon'ble Supreme Court in the case of Tejaswini Gaud and

Others Vs. Shekhar Jagdish Prasad Tewari And Others

reported in (2019) 7 SCC 42. In this case the matter travelled

from the High Court in which challenge was made to the order

passed in the Habeas Corpus Petition. Hon'ble Supreme Court in

para 14 of the judgment held as under:-

"writ of habeas corpus is a prerogative process for

securing the liberty of the subject by affording an effective

means of immediate release from an illegal or improper

detention. The writ also extends its influence to restore the

custody of a minor to his guardian when wrongfully

deprived of it. The detention of a minor by a person who is

not entitled to his legal custody is treated as equivalent to

illegal detention for the purpose of granting writ, directing

custody of the minor child. For restoration of the custody of

a minor from a person who according to the personal law,

is not his legal or natural guardian, in appropriate cases,

the writ court has jurisdiction."

Hon'ble Supreme Court in above judgment held that for

securing the liberty of minor, who is in the custody of the person

not entitled under the personal law, the Habeas Corpus Petition is

maintainable. The counsel further submitted that in the case of

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Tejaswini Gaud (supra) the Hon'ble Supreme Court also

examined the issue of welfare of minor child in case of illegal

custody. The petitioner is performing all his obligations and

responsibilities in a fair and proper manner being the grand father

of the minor child and therefore, the present Habeas Corpus

Petition is maintainable and is entitled for relief as prayed in the

petition.

7. The learned counsel for the respondent No.5, Mr. Manish

Vyas, in his opening arguments seriously objected to the

maintainability of the petition. Learned counsel further submitted

that on the basis of the additional affidavit, as filed before this

Court on 26.05.2025, stated that the respondent No.5 left the

matrimonial house as she was subjected to cruelty and domestic

violence. Further her husband-Rizwan Khan pronounced

"triple talaq" upon her in accordance with Sharia Law and

after such dissolution she returned to her parental house in

Mumbai. In para 3 of the additional affidavit respondent No.5

stated that she visited the matrimonial house in 2016, she was

pursuaded to leave the child for a period of six months with in-

laws and therefore, she agreed to leave the child temporarily at

her matrimonial house. She accepted her second marriage in 2018

with Mohammed Ujair Ansari, birth of child in 2020 and dissolution

of second marriage in December 2022. After dissolution of the

second marriage, as stated in the additional affidavit,

learned counsel Mr. Manish Vyas submitted that the only

reason for respondent No.5 to live in the world is to take

care of the first and second child as born from the first and

second marriages.

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The learned counsel Mr. Manish Vyas further submitted, as

mentioned in the additional affidavit, that in terms of Section 354,

she is not disqualified to have the custody of her minor son as her

second marriage no more subsist, after dissolution in terms of

"khulanama" dated 03.12.2022. On the basis of the

"khulanama" dated 03.12.2022, she declared herself to be

eligible and competent to have rightful custody of her minor son

Jakwan Khan @ Rakan. According to learned counsel, there is no

disqualification in respect of her claiming custody of the minor

child as she is biological mother. Learned counsel referred two

judgment one passed by the Hon'ble Supreme Court in the

case of Gohar Begum Vs. Suggi reported in AIR 1960 SC 93

and another by prevy counsel in Imambandi Vs. Mutsaddi

reported in 1918 PC 11. According to learned counsel, the

above law emphasized and supports her case for having the

custody of the minor child for the welfare. The learned counsel Mr.

Manish Vyas also referred to the judgment of Allahabad High

Court passed in the case of Mohammed Samiullkah Vs.

Shahida Begum reported in 1962 ALL 548. According to him,

in this judgment it is held that after the divorce, mother is entitled

to have custody until unless the ground of disqualification

are proved or established. On the basis of the above

judgments, learned counsel Mr. Manish Vyas prayed for the

dismissal of the present petition on the ground that firstly that

same is not maintainable as the proper remedy would be of filing

suitable application under Guardians and Wards Act 1890 before

the competent Court and further she being the natural/biological

mother of the minor child namely Jakwan Khan @ Rakan is only

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legally entitled to retain him in custody for his welfare, as after

the dissolution of the second marriage on the basis of the

"khulanama" dated 03.12.2022, she does not carry any

disqualification in terms of Section 354 of the Mahomedan Law, as

mentioned above.

8. The learned counsel Mr. Manish Vyas also submitted a

judgment dated 16.10.2023 passed by the Coordinate Bench of

this Court in DB Habeas Corpus Petition No. 317/2023 titled as

"Bharat Kumar Vs. State of Rajasthan and Others". The

learned counsel submitted that in the case of Bharat Kumar

(Supra), the Coordinate Bench while relying upon the judgment

passed by the Hon'ble Supreme Court in the case of Yashita

Sahu Vs. State of Rajasthan reported in (2020) 3 SCC 67

held that the habeas corpus petition in child custody matters is

not maintainable. On the basis of the judgment, as passed by the

Coordinate Bench in the case of Bharat Kumar (supra), the

learned counsel Mr. Manish Vyas submitted that as there are no

extraordinary or exceptional circumstances in the present

case, as noted in the case of Bharat Kumar (supra) by the

Coordinate Bench, therefore, the jurisdiction of this Court

under article 226 of Constitution of India cannot be invoked

for issuance of writ in the nature of habeas corpus. In the

closing arguments learned counsel Mr. Manish Vyas submitted that

brothers of respondent No.5 would support her and capable for

taking care of her both child i.e. the first child namely Jakwan

Khan @ Rakan of the first marriage and child Danish born of

second marriage with Mohammed Ujair Ansari and

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therefore, prayed for dismissal of the Habeas Corpus

Petition.

In rejoinder, the learned counsel for the petitioner Mr. CP

Soni along with Ms. Sarita Devi Soni, by referring to the counter

affidavit, as filed in response to the additional affidavit of

respondent No.5, submitted that the false facts have been stated

in the counter affidavit regarding the physical or mental cruelty by

respondent No.5 as no complaint, FIR or criminal case was ever

lodged against the husband-Rizwan Khan or his family members

by respondent No.5 in respect to any such allegations. The

petitioner through his counsel Mr. CP Soni strongly disputed the

allegation of "triple talaq" while the child was in womb because

from 12.06.2012 to 08.05.2013, his son i.e. Rizwan Khan,

husband of respondent No.5, was in Doha, Qatar and therefore,

there was no question of "triple talaq" being pronounced by

Rizwan Khan. He further submitted that allegation of "triple

talaq" is false as she herself admitted in her letter dated

25.05.2018 that her second marriage is illegal as first marriage

still subsist which is also proved by the complaint of brother dated

22.05.2018.

9. The learned counsel, by further referring to the additional

affidavit of respondent No.5, specifically referred to paras 3,5 and

7 submitted that the complete conduct of the respondent No.5 is

palpable and further annexure-2, the second marriage with

Mohammed Ujair Ansari, annexure-3, the complain dated

22.05.2018 by her real brother Sabir Khan, her letter dated

25.05.2018 to the Police Officials, Mumbai and her unregistered/

non-notarized "khulanama" without any witness of any family

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member or relative dated 02.12.2022 shows that she is not

eligible and qualified to have the custody of the minor child in

terms of Section 354 (4). The learned counsel for the petitioner

further submitted that the respondent No.5 who already have a

child from the second marriage namely child-Danish, has no

sufficient financial means to give proper education and for the

welfare of the child, therefore, the custody cannot be given as she

intentionally neglected the child from 2018 to 30.05.2025 without

any justified reason. In the entire additional affidavit, through

pleadings and also by oral arguments, she failed to satisfy the

Hon'ble Court regarding her sound financial situation. The

petitioner submitted that respondent No.5 admitted that she is

dependent upon her brothers and therefore, in the absence of

sound financial status, complete intentional neglect of the minor

child from 2018 to 30.05.2025, performance of second marriage

with stranger Mohammed Ujair Ansari in 2018, birth of child

Danish from second marriage and a preparation of the false

document "khulanama" on 03.12.2022 in back date, further no

claim for custody even after the "khulanama" dated

03.12.2022 till 30.05.2025, completely proves her conduct

and therefore, the minor child is in her illegal custody and

as she is not entitled to possess the child, therefore, on the

basis of the above submissions, the child must be freed from the

illegal confinement of respondent No.5 and the possession be

restored back to him for the better future and welfare of the minor

child in the peculiar facts and circumstances of the case.

10. Heard learned counsel for the parties and considered in

detail the pleadings of the case, the oral submissions as made by

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the respective counsel and most importantly the facts as informed

to this Court, during interaction in camera proceedings, first by

the petitioner-Rahissudin, (the grandfather), then minor child-

Jakwan Khan @ Rakan, respondent No.5 (mother- Sehra Khan),

and in the last by father of the minor child Rizwan Khan. Before

proceeding further, on completion of arguments this Court

directed the respective counsels to explore the possibility of

resolution of the dispute as the issue pertains to protection and

welfare of the minor child where both mother and father have

performed their second marriages and in case the parties are able

to have amicable solution to the problem the child would be saved

from unnecessary dragging in the litigation in the Court and would

be better for the welfare of the child. Respective counsels assured

the Court that they would try for a amicable solution to the

problem and this Court granted two days time for the same. After

two days, both the counsels fairly informed this Court that despite

trying their best, they failed to have amicable solution between

the parties as the dispute could not be resolved because of the

serious conduct of respondent No.5 and therefore, no peaceful

solution to the dispute is possible and they jointly prayed for

passing of the judgment in the case.

11. The first question this Court is required to decide is as to

whether the present Habeas Corpus Petition filed under Article 226

of Constitution of India is maintainable in the facts and

circumstances of the case or not. The law in regard to issuance of

writ in the nature of habeas corpus is well settled and Hon'ble

Supreme Court from time to time has held that there is no bar

under the law for excise of this extraordinary power under 226 of

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Constitution of India by Writ Court where the circumstances so

demands so as to protect the liberty of the minor child. The law as

settled by the Hon'ble Supreme Court specifically provides that for

restoration of custody of the minor from that person who

according to the personal law is not is legal or natural guardian or

otherwise not entitled to have the custody in appropriate

cases as per the facts and circumstances of the case, the

Court have powers to issue the writ in nature of habeas

corpus. Regarding the maintainability issue, in the case of

Tejaswini Gaud (supra), Hon'ble Supreme Court has held that the

petition under the habeas corpus petition is maintainable in

respect of the custody of the minor child. The relevant paras of

the judgment as passed in the case of Tejaswini Gaud (supra)

are as under:-

"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

15. In Gohar Begam where the mother had, under the personal law, the legal right to the custody of her illegitimate minor child, the writ was issued. In Gohar Begam 17, the Supreme Court dealt with a petition for habeas corpus for recovery of an illegitimate female child. Gohar alleged that Kaniz Begum, Gohar's mother's sister was allegedly detaining Gohar's infant female child illegally. The Supreme Court took note of the position under the Mohammedan Law that the mother of an illegitimate female child is entitled to its custody and refusal to restore the custody of the child to the mother would result in illegal custody of the child. The Supreme Court held that Kaniz having no legal right to the custody of the child and her refusal to make over the child to the mother resulted in an illegal detention of the child within the meaning of Section 491 CrPC of the old Code. The Supreme Court held that the fact that Gohar had a right under the Guardians and Wards Act, 1890 is no justification for denying her right under

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Section 491 CrPC. The Supreme Court observed that Gohar Begum, being the natural guardian, is entitled to maintain the writ petition and held as under: (Gohar Begam Case17, AIR pp. 95-96, paras 7-8 &10) "7. 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 Section 491. This position is clearly recognised in the English cases concerning writs of habeas corpus for the production of infants. In R. v. Clarke 28 Lord Campbell, C.J., said at EL & BL pp. 193-94: (ER p. 1220) '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 Section 491 would clearly be applicable to the case and the appellant entitled to the order she asked.

8. 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.

10. 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 Section 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 Section 491. That is well established as will appear from the cases hereinafter cited."

(emphasis supplied)

16. In Veena Kapoor, the issue of custody of child was between the natural guardians who were not living together. Veena, the mother of the child, filed the habeas corpus petition seeking custody of the child from her husband alleging that her husband was having illegal custody of the one and a half year old child. The Supreme Court directed the District Judge concerned to take down evidence, adduced by the parties, and send a report to the Supreme Court on the question whether considering the interest of the minor child, its mother should be given its custody.

17. In Rajiv Bhatia, the habeas corpus petition was filed by Priyanka, mother of the girl, alleging that her daughter was in illegal custody of Rajiv, her husband's elder brother. Rajiv relied on an adoption deed. Priyanka took the plea that it was a

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fraudulent document. The Supreme Court held that the High Court was not entitled to examine the legality of the deed of adoption and then come to the conclusion one way or the other with regard to the custody of the child.

18. In Manju Malini where the mother filed a habeas corpus petition seeking custody of her minor child Tanishka from her sister and brother-in-law who refused to hand over the child to the mother, the Karnataka High Court held as under: (SCC OnLine Kar para 26) "26. The moment Respondents 1 and 2 refused to hand over the custody of minor Tanishka to the petitioner the natural and legal guardian, the continuation of her custody with them becomes illegal detention. Such intentional act on the part of Respondents 1 and 2 even amounts to the offence of kidnapping punishable under Section 361 IPC. Therefore there is no merit in the contention that the writ petition is not maintainable and Respondents 1 and 2 are in legal custody of baby Tanishka."

19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law."

The above discussion and the law as laid down by the

Hon'ble Supreme Court in above judgment in case of

maintainability of Habeas Corpus Petition in respect of custody of

the minor child need no more discussion law is well settled. The

judgment as cited by Mr. Manish Vyas are not applicable in the

facts and circumstances of the case and judgment passed in

Tejaswini Gaud, leaves no doubt about the same. Therefore in

term of above law, in the peculiar facts and circumstances this

Habeas Corpus Petition is maintainable.

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12. The next question which this Court is requires to answer is

as to how the minor child Jakwan Khan @ Rakan is in the illegal

custody of the respondent No.5 who is the biological mother. To

answer this question, this Court find it appropriate to record that

natural/biological mother, in all usual circumstances, has

the first right over the child irrespective of any adverse

condition until unless her own conduct is so serious and

otherwise and further when she faces disqualification

under the personal law or any statutory law in force. The

facts of the case, as noted in the forgoing paras of the judgment,

which do not requires repetition, clearly shows that respondent

No.5 Sehra and her husband Rizwan Khan (not party in petition)

did not have any matrimonial dispute as none of them filed any

complaint, FIR etc. against each other in any competent Court of

the country questioning each others conduct. As there was no

matrimonial dispute and respondent No.5 in her additional

affidavit failed to justify her act of leaving the minor child in 2016

with the grandfather and also in oral arguments and further her

act of not contacting and returning to the matrimonial house after

she left in 2018 up to 30.05.2025, reflect that she was seriously

negligent in performing her pious obligation and duties towards

her minor child Jakwan Khan @ Rakan.

This Court shall now deal with the issue of disqualification of

respondent No.5 in terms of Muslim Personal Law. Section 354 of

Mulla Principles of Mohammedan Law (20 th Edition) specifically

bars a female which includes the mother for having the custody of

minor child in four conditions. The complete conduct of respondent

No.5, as noted in the previous paras, is sufficient enough to reach

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to the conclusion that she was completely careless in performing

her matrimonial obligations without any justified reason and

further she seriously neglected her first child whose custody is

involved in the present case. As she neglected her own child

without any justified reason and she also performed the second

marriage not only without the consent of her own family members

but also of the in-laws. She also has a child from second marriage

which she concealed not only from petitioner and his family

members but also from this Hon'ble Court before filing of

additional affidavit dated 26.08.2025. Therefore, in terms of

Section 354(4), she is disqualified to have the custody of the

minor child-Jakwan Khan @ Rakan. As this Court has serious

doubt about the veracity of "khulanama" dated 03.12.2022,

therefore, this Court believes that the marriage of respondent

No.5 with Mohammed Ujair Ansari still subsist.

Though this Court heard the arguments of the learned

counsel for the petitioner regarding to issue of the "triple talaq",

its legality and other provisions in this regard but without going

into that this Court noted that the story of "triple talaq" as

presented in the counter affidavit by respondent No.5 is false as

she herself, in her hand written letter to police authorities

in Mumbai dated 25.05.2018, accepted her mistake while

admitting that she performed second marriage while her

first marriage was subsisting. She stated that the second

marriage is illegal as per Muslim Law. The conduct of

respondent No.5 is very serious in this regard. A complete conduct

of respondent No.5 of misleading this Court, consistently not in

submission but also in pleadings before this Court, is serious.

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This Court noted, on the basis of judgments and pleadings of

the case, that without any justified reason respondent No.5 left

the matrimonial house and as per the knowledge and information

of the petitioner and also as informed to this Court by learned

counsel for the petitioner that after leaving her matrimonial house

she had love affair with the stranger-Mohammed Ujair Ansari with

whom she performed second marriage on 21.05.2018. This Court

noted that her real brother-Sabir Khan also objected to the illegal

marriage as he requested the Marriage Registration Authorities in

Mumbai not to register the marriage. The complaint dated

22.05.2018 as made by the brother Sabir Khan contains a

specific fact that she is already married and has a six year

old son. This Court along with this complaint dated

22.05.2018 also read the hand written letter of the

respondent No.5 dated 25.05.2018, as submitted to Police

Authorities in Mumbai, in which admitted that she entered

into illegal marriage in violation of the Muslim law and she

would close all her relationships with Mohammed Ujair

Ansari with whom she performed the second marriage. This

Court noted that though this handwritten letter was given

to Police Authorities in Mumbai on 25.05.2018 but she

continued to live with Mohammed Ujair Ansari in the

capacity of wife and had a child out of this illegal second

marriage in the year 2020, however, when this Court

questioned Mr. Manish Vyas, learned counsel for the

respondent No.5 regarding the veracity of annexures 2 and

3 then by way of additional affidavit the "khulanama" dated

03.12.2022 has been filed on record of this Court. This

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"khulanama" appears to have been prepared in back date.

Before filing of the additional affidavit the fact of the

second marriage was completely denied rather by

concealing the fact it was informed to this Court that no

such marriage has been done and respondent No.5 would

take appropriate steps against the petitioner in respect of

filing of annexures 2 and 3 but as the respondent knew that

the documents are part of the Government record in

Mumbai and therefore, she submitted "khulanama" dated

03.12.2022 with affidavit. This "khulanama" by which the

respondent No.5 has dissolved her second marriage, does

not bear the presence of any witness including the family

members and further it is neither registered nor notarized.

The authenticity of this document, according to this Court,

is seriously doubtful and this Court reaches to a definite

conclusion the same was initially concealed then presented

with affidavit only to frustrate the present petition as filed

by the petitioner-grand father.

On the basis of the above serious observations, this Court

has also reached to the conclusion that respondent No.5 has not

approached this Court with clean hands rather she mislead this

Court consistently from the date of appearance i.e. before filing of

the additional affidavit (filed on 26.08.2025), during the

arguments and also by making false statements regarding her

entire conduct where she concealed the correct facts about second

marriage, child from the second marriage. Any litigant or party

who approaches the Court with unclean hands deserves no

sympathy and leniency. The law in this regard is well settled.

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Hon'ble Supreme Court in catena of judgment has deprecated the

practice of litigants or parties where they intentionally conceal the

material facts, mislead the Court so as to secure favorable orders.

Some relevant judgments on this issue needs reference in this

judgment.

Hon'ble Supreme Court in the case of Badami (deceased)

by her LRs Vs. Bhali in Civil Appeal No. 1723/2008 decided on

22.05.2012 reported in MANU/SC/0491/2012 in para 20 while

discussing of issue regarding approach the Court with unclean

hands observed that the Courts of Law are meant for imparting

justice between parties and one who come to the Court must

come with clean hands. The person whose case is based on

falsehood has not right to approach the Court. A litigant who

approach to the Court is bound to produce all documents executed

by him which are relevant to adjudication. If a vital document is

withheld in order to get advantage from the other side then he

would be guilty of claim from the Court as well as the opposite

party. The relevant para 20 and 24 of the said judgment are as

under:-

"20 In S.P. Chengalvaraya Naidu 9dead) by LRs v. Jagannath (dead) by LRs and Ors MANU/SC/0192/1994 : AIR 1994 SC 853 this Court commenced the verdict with the following words:

"Frauds-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree-by the first court or by the highest court- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

24. Yet in another decision Hamza Haji v. State of Kerala and Anr. MANU/SC/8416/2006 : AIR 2016 SC 3028 it has been held that no court will allow itself

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to be used as an instrument of fraud and not court, by was of rule of evidence and procedure, can allow its eye to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof."

Hon'ble Supreme Court in the case of V.

Chandrasekaran and Ors Vs. The Administrative Officer and

Ors. reported in MANU/SC/0751/2012 in Civil Appeal No.6342-

6343 of 2012 decided on 18.09.2012 in paras 34 to 37 examined

the issue of the conduct of the litigant who approached the Court

with unclean hands. The relevant paras of the judgment are as

under:-

"34. The Appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation and Ors. v. Union of India and Ors.

MANU/SC/0117/1993 : AIR 1993 SC 852;Noorudiin v. (Dr.) K.L. Anand MANU/SC/0533/1995 : (1995) 1 SCC 242; and Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors. MANU/SC/0279/1997 : AIR 1997 SC 1236).

35. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.

36. In Dalip Singh v. State of U.P. and Ors.

MANU/SC/1886/2009 : (2010) 2 SCC 114, this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The

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quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

37. The truth should be the guiding star in the entire judicial process. "Every trial is a voyage of discovery in which truth is the quest". An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari and Anr. v. State of Uttar Pradesh and Ors. MANU/SC/0742/2010 : (2010) 10 SCC 677; andAmar Singh v. Union of India MANU/SC/0596/2011 : (2011) 7 SCC 69).

38. I n Maria Mararida Sequeria Fernandes and Ors. v. Erasmo Jack de Sequeria (dead) MANU/SC/ 0225/2012 : (2012) 5 SCC 370), this Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi MANU/SC/0714/2011 : (2011) 8 SCC 249 held:

False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent.

The Court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon, false pleadings and forged or fabricated documents in the records furnished by them to the court."

Hon'ble Supreme Court further in the case of Yashoda Vs.

Sukhwinder Singh and Ors. reported in MANU/SC/1160/2022 in

Civil Appeal No. 8247/2009 decided on 12.09.2022 in para 29

examined the issue where the parties or the litigants obtains the

judgment/decree etc. by playing fraud upon the Court. Para 29 of

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the judgment being relevant for the present case is reproduced as

under:-

"29. It could thus be seen that this Court has held that what would be a 'material fact' would depend upon the facts and circumstances of each case. It has also been held that 'material fact' would mean material for the purpose of determination of the lis. It has also been held that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. In the present case, filing of the earlier suit and withdrawal thereof without liberty to file another suit was a material fact. Undisputedly, the Respondents- Plaintiffs had failed to approach the court with clean hands. As such, we find that the said judgment would be of no assistance to the case of the Respondents- Plaintiffs."

In terms of the serious conduct of respondent No.5, as noted

above and the above law as laid down by Hon'ble Supreme Court

in regard to the litigants who approach the Court with unclean

hands, this Court seriously deprecate the conduct of respondent

No.5. The petitioner- who is the grand father fairly presented this

Court that in normal circumstances a mother would be the first

person to have the custody of the minor child but he, as a grand-

father, has performed his pious obligations and made no mistake

rather he did his best in giving best education to child, taking care

of all medical facilities and for the personal grooming and well

being. The petitioner also satisfied this Court that he is taking care

of the child when he was just six years old and till 30.05.2025

when the child reached almost of 13 years of age.

An important fact required to be recorded here on the basis

of the admitted facts, as informed to the Court by both the

learned counsels, that petitioner's family is financially

sound and capable enough to take care of the minor child

and for his better future and welfare. On the other hand,

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respondent No.5 who already has child from the second

marriage is completely dependent on her brothers and it

has not been informed to this Court as to how her brothers

would be able to meet the financial burden of the two

children of respondent No.5. In the peculiar facts and

circumstances of the case, the respondent No.5 cannot be allowed

to have the minor child in her possession and same is illegal for

reason as recorded in preceding paras noticing her conduct from

2012 to 2025. Further while deciding the issue of custody in the

habeas corpus petition or in the custody matters, the primary

concern of the Court is to ensure the welfare of the child. Hon'ble

Supreme Court in the case of Tejaswini Gaud (supra) also

examined the issue of welfare of the minor child in a Habeas

Corpus Petition. The relevant paras, regarding the observation in

respect of the welfare of the minor child, of the judgment passed

by Hon'ble Supreme Court, are reproduced as under:-

"26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.

27. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil Ratan Kundu11, it was held as under: (SCC pp. 427-28, paras 49-52) "49. In Goverdhan Lal v. Gajendra Kumar 35, the High Court observed that it is true that father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conductive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole

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consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live.

50. Again, in M.K. Hari Govindan v. A.R. Rajaram 36, the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to "human touch". The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.

51. In Kamla Devi v. State of H.P. 37, the Court observed:

(SCC OnLine HP para 13) '13. ... the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patirae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent of the other.'

52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conductive to the welfare of the minor."

28. Reliance was placed upon Gaurav Nagpal13 where the Supreme Court held as under: (SCC pp. 52 & 57, paras 32 & 50-51) "32. In McGrath (Infants), In re38, Lindley, L.J. observed:

(Ch p. 148) '... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word

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"Welfare" must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded.'

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As oberved recently in Mausami Moitra Ganguli Case 39, the court has to give due weightage to the child's ordinary contentment, health education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Thought the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (emphasis in original)"

As informed to this Hon'ble Court by the petitioner that the

minor child up to 30.05.2025 was getting good education in the

reputed school of Jodhpur and he would to continue to provide the

same. Further, this Court is also aware of the fact that to

provide better education and in reputed schools of similar

level in a city like Mumbai for a person like respondent No.5

who already has a minor child namely Danish from her

second marriage, is impossible more so when she is

completely dependent on her brothers all her financial

needs.

This Court, before hearing the final arguments also

interacted with the petitioner, mother i.e. respondent No.5, minor

child-Jakwan Khan @ Rakan and father of the minor child Rizwan

Khan in camera proceedings. The petitioner who is the grand-

father in his interaction with this Court informed about the present

matrimonial status of respondent No.5 as well as his son Rizwan

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Khan. He informed the Court that even at this age of 64 years he

is doing all his duties and performing all obligations for the welfare

of the minor child and would continue to do that. He assured that

in case the child is allowed to stay with him till he attains the age

of 18 years, he would continue to do what he was doing from

2018 till 30.05.2025 and in case the limited visitation rights are

given to the mother then he and his family would have no

objection, however, there should not create any interference in

their family by respondent No.5. He also informed this Court

regarding his sound financial status and would not leave any stone

unturned for the betterment and welfare of the minor child not

only up to the age of 18 years but even thereafter. The Court

further interacted with the minor child Jakwan Khan @ Rakan

whom we find is the decent and well-mannered child who even

after staying away from the mother and father is a disciplined

child with clarity of thoughts. He is happy with the petitioner and

in case, as noted from the interaction, mother comes and meets

him he would love and enjoy her company also. He also informed

that while he was in Jodhpur, he was studying in a reputed school

of the city. He has no objection or any difficulty with the second

mother with whom his father has performed the second marriage

and he enjoys her company also.

After interaction to the minor child the Court interacted with

the respondent No.5 who is biological mother. This Court tried to

understand the dispute, complexity, etc. which led to fallout of the

matrimonial relationship, however, she failed to convince this

Court in regard to abandonment of the child and desertion of the

husband-Rizwan Khan in 2018 and the reason of performance of

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second marriage. Though by words, she expressed her desire to

have the sole possession/custody of the child in the capacity of

the biological mother, however, she failed to answer that why

no steps for custody of the child was taken from 2018 to

May 2025 or even after the dissolution of the second

marriage by "khulanama" dated 03.12.2022. She was

completely silent in respect of not taking any steps for

custody of the child and any effort to meet the child during

all this period. This Court tried to understand as to how she

would take care of the financial needs of the child including

education, medical facilities etc. when she is completely

dependent upon her brothers. She failed to answer this query of

the Court. This Court is not satisfied regarding her financial status

which is an important consideration for the welfare of the child.

This Court noted a peculiar fact, during interaction with her,

regarding her conduct in the Court proceedings. This Court noted

serious language problem even during the interaction and

aggression and the body language and even while responding to

the Court queries her response was not decent and calm.

In the last, the Court interacted with the father of the minor

child i.e. Rizwan Khan who is not the party to the petition. The

father-Rizwan Khan was present in all proceedings before the

Court. He denied any matrimonial dispute with the respondent-

wife, however, he admitted that he has performed the second

marriage and his wife has accepted his first child i.e. Jakwan Khan

@ Rakan. He assured that he and his second wife would take care

of the child in the best possible manner and would not make any

mistake while doing everything for the welfare of the child. He

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expressed his intention to take the child abroad in Doha, Qatar

where he is doing his business. This Court noted decent attitude

and calmness in the behavior and personality of the father during

interaction. After the above interaction, the matter was heard final

and the discussion of this Court on the merit of case has already

been recorded in the above paras.

For the welfare of the child, this Court has no doubt about

the fact that the petitioner who is the grandfather is capable

enough to ensure the proper well being and for protection of the

future of child must remain with the petitioner (the grand-father).

In terms of the above conclusion, as recorded by this Court on the

basis of the detailed examination of the pleading of case, the

present Habeas Corpus Petition is allowed and the custody of the

minor child-Jakwan Khan @ Rakan with respondent No.5 is

declared as illegal. The Habeas Corpus Petition is allowed with

following directions:-

(i). The respondent No.5 is directed immediately handover

the possession/custody of the child-Jakwan Khan @ Rakan to the

petitioner-grand father.

(ii). The petitioner will continue to provide same and even

higher level of education and would also take all necessary steps

as required for a proper education, good medical facilities, for

providing peaceful and healthy environment for proper upbringing

of the child till he attains the age of 18 years. The petitioner is

further directed to make an unbreakable fix deposit of Rs. 15 lakh

in the name of minor child-Jakwan Khan @ Rakan in a nationalized

bank up to the age of 18 years.

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(iii). The father of the minor child, as informed to this Court,

works in Doha, Qatar would not take the child out of India till he

attains the age of 18 years. If the minor child wishes to go abroad

for the purpose of traveling then the petitioner-grandfather would

accompany him and would ensure his safe return to India along

with him.

(iv). Though this Court as held that respondent No.5 is

disqualified in terms of Section 354 (4) to have the custody of

minor child, however, in the interest of justice, she would be

allowed to have visiting rights for every second Sunday in every

two months i.e. second Sunday of February, April, June, August,

October and December at a suitable place to be decided by the

petitioner keeping the safety and welfare of the child preferably on

Sunday between 9:00 a.m. to 5:00 p.m. for the entire day.

(v). The respondent No.5 is restrained not to disturb the

peaceful possession of the child with the petitioner till the age of

18 years.

(vi). In case the respondent No.5 acts in breach of the

above direction of this Court, the petitioner would be at liberty to

filed contempt petition or such other proceedings as be necessary

in accordance with law. There shall be no order as to costs.

                                   (RAVI CHIRANIA),J                                   (MANOJ KUMAR GARG),J
                                    47-Jatin/-




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