The Lucknow Bench of the Allahabad High Court while disposing the petition observed that according to the Mohammedan Law, a mother is entitled to custody (hizanat) of a male child until he completes the age of 7 years.
A Single Bench of Justice Karunesh Singh Pawar passed this order while hearing a Habeas Corpus Petition filed by Takbeer Khan (Minor)Through His Mother Rehana.
The petition has been filed by the mother of the detenue-Takbeer Khan, aged about 3 years and 7 months now, praying for a direction for respondent Nos 2 and 3 to recover and produce the detenue before the Court after liberating him from the custody of opposite party No 4.
The Court interim order dated 15.09.2022 granted visiting rights to the deponent. It is submitted on behalf of the petitioner that neither the opposite party No 4 is represented before this Court nor the visiting rights granted to the deponent vide interim order dated 15.09.2022 are being properly complied with. At times they are complied and at times they are not complied.
Counsel for the petitioner submitted that detenue is presently in the custody of opposite party No 4-Intiyaj Khan, husband of the deponent.
Both deponent and opposite party No 4 have married on 09.05.2017. It is submitted that after the marriage, the respondent No 4 used to beat Rehana (mother of the detenue) under influence of alcohol. Out of their wedlock, their son Takbeer Khan (detenue) was born on 03.03.2020.
Due to atrocities committed by respondent No 4, the deponent returned to her parental home along with her son in the year 2021. After some time, she again went to her matrimonial home and started living with her husband (opposite party No 4) however, the conduct of opposite party No 4 did not change.
In the meantime, a case under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act was registered as Case at P.S- Thakurganj, District Lucknow in which opposite party No 4 was chargesheeted and remained in jail for almost a year and ultimately was released on bail on 18.01.2019.
After being released, opposite party No 4 again involved in extra marital affairs with another woman which was objected by the deponent-Rehana and she informed the same to her parents.
After which, opposite party No 4 on 15.06.2022 compelled her to leave her matrimonial house however, forcefully detained the detenue-Takbeer Khan from the custody of Rehana since then she is making all efforts to bring back her son Takbeer Khan. The deponent also went to Police Station-Para, DistrictLucknow on 20.07.2022 and gave an application.
It is submitted on behalf of the petitioner that the detenue-Takbeer Khan has been illegally detained by opposite party No 4 who is a drunkard and an accused in a rape case and has already been in custody over a period of one year and thus, considering the overall interest of the detenue, it will not be safe to leave the detenue in the custody of such person who is facing rape charges and is alcoholic.
A.G.A has submitted that the petition shows that father of the detenue namely, Intiyaj Khan is facing rape charges in Case under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act, P.S Thakurganj, District Lucknow.
The Court observed that,
It is not disputed that detenue while filing the petition was 2 years old and presently around 3 years and 7 months old. It is also not disputed between the parties that opposite party No 4 is facing rape charges. Specific averments regarding the Case under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act have been levelled of the petition which have not been denied by respondent No 4 while filing the counter affidavit rather it has been stated that opposite party No 4 has been falsely roped due to ulterior motive and trial is going on and he is on bail.
The opposite party No 4 while filing the counter affidavit has raised a preliminary objection that petition has been filed on misleading facts and by concealing the divorce/compromise which took place between the parties on certain terms and conditions and as per those terms and conditions, the alleged detenue was left with the custody of opposite party No 4.
A perusal of the judgment in Nil Ratan Kundu’s case (supra), it is clear that pendency of a criminal case is definitely one of the important considerations for assessing the character of the proposed guardian. The opposite party No 4 in the case is facing heinous charge like rape which cannot be lost sight of while exercising the jurisdiction of habeas corpus. The primary consideration for the Court is to protect and watch for the rights of the minor child which has approached the Court. The ultimate well being and welfare of the child as well as future prospect of the child have to be borne in mind while adjudicating this jurisdiction. The Court is not concerned with the rights of the respective parties such as compromise/divorce etc in these proceedings. The deponent of the petition is none other than the mother of the detenue, aged about 3 years and 7 months old. According to the Mohammedan Law, a mother is entitled to custody (hizanat) of a male child until he completes the age of 7 years.
“Thus, keeping in view the law laid down by the Supreme Court in the case of Nil Ratan Kundu (supra) the fact that deponent is facing trial for the heinous offence committed upon the minor and considering the tender age of the detenue, in peculiar facts of this case, this Court is of the view that custody of the detenue should be given to the deponent-Rehana”, the Court further observed while disposing the petition.
“Accordingly, the writ of habeas corpus is issued directing the opposite party No 4 to hand over the custody of the detenue to the deponent of the petition namely, Rehana forthwith. The respondent Nos 2 and 3 shall ensure the compliance of the order”, the order reads.