High Court

2. Heard Sri Avanindra Singh Parihar, learned counsel for the petitioner, Sri Gantavya, learned Counsel for opposite party nos. 4 to 6 and perused the record.

3. On the issue of maintainability/ entertainability of the present petition, based upon the Sections 352, 354, 357 of Mulla Principles of Mahomedan Law, 21st Edition as also the facts pertaining to filing of Suit No. 99 of 2024, on 31.08.2024, under the Guardian and Wards Act, 1890 (in short 'Act of 1890') in the Court of District Judge, Hooghly, in which the next date fixed is 04.01.2025 as also the order dated 04.12.2024 passed by Child Welfare Committee, District- Hooghly (in short 'Committee') i.e. Order No. CWC(H)/1490/2024, which indicates that the next date fixed in the case is 20.12.2024, as also the observations made by the Full Bench of this Court in the judgment passed in the case of Rachna V State Of U.P. reported in MANU/UP/0316/2021, Sri Gantavya, learned Counsel for the private opposite parties, submitted that the present Habeas Corpus Petition is not maintainable and liable to be dismissed at the admission stage.

4. The principles embodied under the referred Sections are not in dispute, according to which father is entitled to the custody of a boy over seven years of age. Other facts of the case including that the corpus in this case is over seven years of age and the principles laid down in the judgment passed by this Court in the case of Rachna (Supra), are also not in dispute.

5. Considered the aforesaid and also the following facts:- (i) The marriage of Smt. Shagufta Parveen alias Shagufta Sajjad, was solemnized with opposite party no.4/Sajjad Hassan Masood on 10.04.2013 and out of this wedlock of the corpus namely Master Mahib Sajjad Masood was born on 06.09.2016. (ii) As per the recitals in the judgment dated 29.01.2024 passed in HABEAS CORPUS WRIT PETITION No. 880 of 2023 (Master Mahib Sajjad Masood And Another vs. State Of U.P. And 10 Others), Smt. Shagufta Parveen @ Shagufta Sajjad, mother of corpus (Master Mahib Sajjab Masood), was sent to her matrimonial home by her husband alongwith the corpus on 03.06.2023. (iii) The opposite party No. 4/Sajjad Hasan Masood, father of corpus, thereafter, filed the HABEAS CORPUS WRIT PETITION No. 880 of 2023, detailed above, before this Court at Allahabad, which was dismissed by this Court after taking note of the facts as indicated by the parties' counsel vide order dated 29.01.2024. The order dated 29.01.2024 on reproduction reads as under:- "1. Heard Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra, learned counsel for the petitioners, Sri Pankaj Saxena, learned A.G.A.-I appearing for the State-respondents and Sri R. P. Rajan, learned counsel for the respondent Nos. 8, 9, 10 and 11.

2. The present habeas corpus petition has been filed primarily seeking the following relief:- "1. a writ, order or direction in the nature of mandamus directing and commanding all the respondent authorities as well as private respondents to produce Master Mahib Sajjad Masood the corpus before this Hon'ble Court to set at liberty forthwith and to give custody to his natural guardian - father (petitioner no.2) to secure his future."

3. Pursuant to the rule nisi issued earlier, the petitioner No. 1 (corpus), minor child of age about seven years, has been produced in Court by respondent No. 8, his mother.

4. Respondent No. 8 is present in Court and has been identified by her counsel, Sri R. P. Rajan.

5. The petitioner No. 2, Sajjad Hasan Masood, father of the petitioner no.1 (corpus), is also present in Court, and has been identified by his counsel, Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra.

6. Learned counsel appearing for the respondent No. 8 has stated that the amount as directed by the Court vide its order dated 21.12.2023 has been received by the said respondent.

7. Counsel for the parties do not dispute the fact that looking to the age of the child, it would be difficult to ascertain his wishes and accordingly the question with regard to his guardianship and custody would be required to be considered taking into view the entirety of the facts and circumstances of the case.

8. Learned A.G.A.-I, on the basis of an inquiry from the respondent No. 8, mother of the petitioner No. 1 (corpus), in Court, submits that she has stated that she is presently living at her maternal home. She has stated that she has a post-graduate degree and is capable of looking after her son, who is presently a minor, aged about seven years. She has stated that she was sent to her maternal home by her husband, on 03.06.2023, and thereafter she has not been taken back. She has also stated that she is not averse to going back her matrimonial home, but her husband is not willing to take her back. As regards her minor son, she has stated that the child is going to school and is in good health.

9. Learned A.G.A.-I has also made an inquiry from the petitioner No. 2, in Court, and submits that he has stated himself to be in a government job. On a pointed query, he has expressed his unwillingness to take back the wife stating that there is already a talaq between them.

10. As per the pleadings in the petition, the respondent No. 8 (mother) is stated to have left her matrimonial home, on 02.06.2023, with all her certificates, jewellery and cash, alongwith her minor son, petitioner no.1 (corpus).

11. There is no material to suggest that the petitioner No. 1 (corpus) was forcibly taken away by the respondent No. 8. On the contrary, there is a clear assertion by respondent No. 8 that she was sent alongwith her minor son by the petitioner No. 2 to her maternal home and thereafter she has not been taken back.

12. The petitioner No. 2 (father of the corpus), has categorically stated that he is unwilling to take back the respondent No. 8 (mother of the corpus).

13. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 18901, and an order with regard to guardianship may be passed under the aforesaid enactment, upon an application filed by a person claiming entitlement.

14. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor.

15. Section 17 of the GWA relates to matter to be considered by the court in appointing a guardian, and in terms thereof it is provided that the court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA.

16. It is common ground between the parties that insofar as the question of custody is concerned, their rights are to be governed by the personal law.

17. The matters relating to "Guardianship of Person and Property" are provided under Chapter XVIII of Principles of Mahomedan Law2 and Part-A thereof pertains to "Appointment of Guardians". In terms of Section 349, all applications for the appointment of a guardian of the person or property or both of a minor, are to be made under the GWA.

18. Further, Section 351 of Principles of Mahomedan Law, which is in terms of Section 17 of the GWA, imposes a duty upon the court in appointing guardian to make the appointment consistently with the law to which the minor is subject, keeping in view the welfare of the minor.

19. The subject matter relating to "Guardianship of a Person of a Minor" is dealt with under Part-B of Chapter XVIII of Principles of Mahomedan Law, and Sections 352 and 353 thereof are extracted below:- "352. Right of mother to custody of infant children.—The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f).

353. Right of Female relations in default of mother.—Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:— (1) mother's mother, how highsoever; (2) father's mother, how highsoever; (3)full sister; (4) uterine sister; (5) consanguine sister; (6) full sister's daughter; (7) uterine sister's daughter; (8) consanguine sister's daughter; (9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters."

20. A conjoint reading of the aforesaid provisions indicates that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years, and failing the mother, the custody of a boy under the age of seven years, belongs to the female relatives in an order under which the mother's mother is shown first.

21. The custody of the petitioner No. 1, corpus (a male child aged about seven years), with the respondent No. 8 (his mother), cannot, therefore, be stated to be prima facie illegal.

22. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.

23. The principal duty of the Court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The principle is well settled that in such matters the welfare of the child is of paramount consideration.

24. In child custody matters, habeas corpus proceedings may not be utilized to justify or examine the legality of the custody. The power of the Court in granting the writ is qualified only in cases where detention of a minor is by a person not entitled to his/her legal custody. For the exigence of a writ, it would be required to be proved that the detention of the minor child is illegal and without any authority of law, and that the welfare of the child requires that the present custody should be changed.

25. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate legal forum.

26. The legal position in this regard has been considered by this Court in a recent judgment in Ujaif @ Noor Alam and others Vs. State of UP and others.

27. In the present case, the custody of the petitioner No. 1, corpus (a minor of aged about seven years), is presently with his mother. The material facts do not, in any manner, suggest that it is a case of illegal detention, and in view thereof, the present petition seeking a writ of habeas corpus would not be entertainable.

28. As regards the claim for custodial rights, it is always open to the parties to avail the appropriate remedy for the purpose before the proper forum.

29. The observations made hereinabove are prima facie in nature and the same would be without prejudice to the rights and contentions of the parties, which may be agitated in appropriate proceedings.

30. The rule nisi issued earlier is discharged.

31. The petitioner No. 1 (corpus), would go alongwith the respondent No. 8, to the place from where he has been brought.

32. The habeas corpus petition stands dismissed." (iv) Thus, till 29.01.2024, the custody of corpus was with his mother/Smt. Shagufta Parveen @ Shagufta Sajjad. (v) It would not be out of place to indicate that challenging the FIR/Case Crime No. 0269/2024 dated 16.07.2024 lodged by Smt. Shagufta Parveen @ Shagufta Sajjad, mother of corpus, making allegations therein so as to attract the offence as indicated under Section 137(2) of B.N.S., which deals with offence of kidnapping, at Police Station- Gosainganj, District- Lucknow, the opposite party No. 4 filed a Criminal Misc. Writ Petition No. 5449 of 2024 (Sajjad Hasan Masood vs. State Of U.P. Thru. Prin. Secy. Ministry Of Home Affairs, Civil Sectt. Lko And Others), which was dismissed by this Court vide order dated 09.08.2024. (vi) The order dated 09.08.2024 was challenged by the opposite party No. 4/Sajjad Hasan Masood before the Hon'ble Apex Court by means of a Special Leave to Appeal (Crl.) No(s). 12168/2024 and the same has also been dismissed by the Hon'ble Apex Court vide order dated 18.10.2024 (annexed as Annexure No. RA-2 to the rejoinder affidavit).

6. From the aforesaid facts as also Annexure No. 3 to this petition, which are the copies of photographs, and also the facts that after judgment and order dated 29.01.2024, quoted above, passed in Habeas Corpus Petition filed by opposite party no.4 and lodging of FIR, detailed above, on 16.07.2024 the opposite party no.4, father of corpus, filed the Suit No. 99/2024, on 31.08.2024, under the Act of 1890 and initiated the proceedings under Juvenile Justice Act, 2015, it is crystal clear that the opposite party No. 4/Sajjad Hasan Masood took the custody of child/Master Mahib Sajjab Masood (corpus) forcibly.

7. In view of aforesaid and also taking note of the observations made in the judgment passed by the Hon'ble Apex Court in the case of Tejaswini Gaud and Others Versus Shekhar Jagdish Prasad Tewari and Others reported in (2019) 7 SCC 42, this Court is of the view that the instant petition is liable to be entertained. Ordered accordingly.

8. Let the matter be listed on 19.12.2024.

9. Master Mahib Sajjab Masood (corpus) shall be produced before this Court on the next date of listing.

10. Senior Registrar of this Court is directed to communicate this order to the following authorities:- (1) District Judge, District Hooghly (2) C.J.M., District Hooghly (3) Child Welfare Committee, Hooghly, Juvenile Justice (Care and Protection of Children) Act, 2015, A Bench of Judicial Magistrate of First Class, Uttarpara, Children Home for Girls, 7, Rajmohan Road, Uttarpara, Hooghly."

6. The aforesaid order dated 12.12.2024 was challenged before Division Bench in Special Appeal No. 293 of 2024, which was dismissed vide order dated 18.12.2024, which is as under:- "1. This appeal is directed against the order dated 12.12.2024 passed by the learned Single Judge in Habeas Corpus Writ Petition No. 295 of 2024 whereby the learned Single Judge has inter alia directed production of the Corpus before the Court on the next date of listing i.e. 19.12.2024.

2. The petition in the nature of Habeas Corpus was filed by the respondent mother making allegations against the appellants inter alia of kidnapping the corpus and seeking his custody.

3. Learned Single Judge after hearing the parties and noticing the facts that in the previous proceedings initiated in the nature of Habeas Corpus by the appellants, a direction was given on 29.01.2024 that the Corpus would go with the mother, the fact that FIR/Case Crime No. 0269 of 2024 was lodged on 16.07.2024 under Section 137(2) of BNS dealing with the offence of kidnapping against which the writ petition by High Court and Special Leave Petition filed by them was rejected by Hon'ble Supreme Court, coupled with the fact of filing of a suit under Guardians and Wards Act, 1890 and initiation of proceedings under Juvenile Justice Act, 2015, by the appellants before the court at Hooghly/ C.W.C., Hooghly observed that the custody of child was taken forcibly by the appellants and directed production of the corpus.

4. Various submissions have been made pertaining to the maintainability of the writ petition in the nature of Habeas Corpus as well as the fact that Court has recorded opinion regarding the custody of the child being taken forcibly.

5. Further submissions have been made that in the previous round of litigation in the nature of Habeas Corpus, observations were made regarding parties not disputing that it is difficult to ascertain the wishes of the child looking to the age. Submissions have been made that the order passed is not justified.

6. Learned counsel for the respondents supported the order impugned.

7. The law pertaining to maintainability/entertainability of the petition in the nature of Habeas Corpus between warring parents has been dealt with in the case of Tejaswani Gaud and others Vs. Shekhar Jagdish Prasad Tiwari 2019 (7) SCC 42 wherein Hon'ble the Supreme Court has inter alia laid down that for the purpose of ascertaining the welfare of the child the powers under Article 226 of the Constitution of the India in a petition filed in the nature of Habeas Corpus can be exercised by the Court and therefore apparently it cannot be said that on the allegations made in the petition, the petition is not maintainable/entertainable.

8. Coming to the observations made by the learned Single Judge, at the present stage based on the sequence of events noted by the learned Single Judge, pertaining to the custody of the child having been taken forcibly are apparently prima facie only and it cannot be said to be a final opinion and therefore the plea raised in this regard cannot be countenanced.

9. So far as the direction given by the learned Single Judge for production of the corpus is concerned, in the circumstances of the case wherein the child admittedly at one stage was in custody of the respondents and presently in custody of the appellants and serious allegations pertaining to kidnapping have been made, the directions given by the learned Single Judge for production of the Corpus cannot be faulted.

10. In view thereof, we do not find any reason to interfere with the order impugned. There is no substance in the appeal, the same is therefore, dismissed."

7. On 19.12.2024, 07.01.2025 and 10.01.2025, following orders were passed:- Order dated 19.12.2024: "1. Shri Gantavya Kumar, learned counsel for opposite party no.4, in whose custody corpus is at District- Hooghly, State of West Bengal, as also Shri Shobhit Mohan Shukla, Advocate, who appeared before the Division Bench of this Court in Special Appeal No.293 of 2024, which was filed challenging the order dated 12.12.2024 passed by this Court in the instant petition directing the opposite party no.4 to produce the corpus before this Court on 19.12.2024 and the said Special Appeal No.293 of 2024 has been dismissed by a detailed order dated 18.12.2024, made a statement at the Bar, which should be honoured, that corpus would be produced on 07.01.2025.

2. Let the matter be listed on 07.01.2025 in top 30 cases of the cause list.

3. The corpus be produced on the date fixed.

4. In case the corpus is not produced on the next date, the Court would be compelled to issue appropriate direction to the police authorities. However, this Court expects that this situation would not arise. It is for the reason that the Members of the Bar has made a statement, indicated above." Order dated 07.01.2025: "1. Heard Shri Avanish Kumar Singh, learned counsel for the petitioner, as well as S/Shri Shobhit Mohan Shukla, B.K. Singh Gantavya, S. Shankar Dubey and Lokenath Chatterjee appearing for respondent nos. 4 to 6 as well as learned AGA for respondent nos. 1 to 3-State Authorities and perused the record.

2. Vide order dated 12.12.2024 passed by the coordinate Bench of this Court private respondents were directed to produce Master Mahib Sajjab Masood (corpus) before this Court on 19.12.2024.

3. The said order was challenged by the respondent no. 4 by filing Special Appeal No.293 of 2024, which was dismissed on merits on 18.12.2024 and the order passed by the coordinate Bench was affirmed. Thereafter, on 19.12.2024, the coordinate Bench again directed for production of the corpus on the next date of listing i.e. on 07.01.2025.

4. Today, private respondents, especially respondent no. 4, who is shown to be having the custody of the child, has sent OPD Patient Card of the corpus to his counsel and the same has been produced for perusal of this Court and has been taken on record. On the basis of this OPD Patient Card, it is claimed that the corpus is suffering from jaundice and is not in a position to travel. Without commenting anything on the authentication of this document, respondent no. 4 is directed to get the blood sample of the corpus examined for 'liver function test' and transmit a report of the same to his counsel through whatsApp/email, as the case may be, which will be placed before this Court by his counsel on 10.01.2025. It is also directed that the respondent no. 4 shall communicate to his counsel the complete address of West Bengal where the child is now residing.

5. List this matter be listed on 10.01.2025." Order dated 10.01.2025:

1. Petition called out. Learned counsel for the petitioner along with learned AGA for the State is present. No one is present for private respondents. In order to accommodate learned counsel for private respondents, the case would be taken up at 11 a.m. Learned counsel for the petitioner is directed to inform learned counsel for private respondents- Shobhit Mohan Sukla about taking up of the matter at 11 a.m.

2. As directed above, the petition called out at 11 a.m.

3. Heard Shri Avanish Kumar Singh, learned counsel for the petitioner, Shri Gantavya, learned counsel appearing for respondent nos. 4 to 6, as well as learned AGA for the respondents and perused the record.

4. Pursuant to earlier order of this Court dated 07.01.2025, some reports, which appear to have been made available by the respondent no. 4 to his local counsel at West Bengal, who in turn, has sent the same to learned counsel appearing for respondent no. 4 to 6, along with complete address where the respondent no. 4- Sajjad Husain Masood is at present living i.e. 'Karam Manzil, C/o Masood Alam (Income Tax Officer, Retd.), 33/1, N.G. Para Road, Post Angus, Pin- 712221, Police Station Bhadreswar, District Hooghly, West Bengal, have been placed for perusal of this Court

5. The reports as well as OPD Ticket of alleged deteneue/ Master Mahib Sajjad Masood and complete address of the respondent no. 4 are taken on record.

6. Perusal of the reports as well as OPD Ticket of alleged deteneue/ Master Mahib Sajjad Masood, aged about 8 years, reflect some deteriorated parameters pertaining to SGOT and SGPT, while the other parameters appear to be normal in range, except Total Bilirubin and Direct Bilirubin, which appear to be a bit high. These parameters are evident of liver disorders as is reflected from the OPD Ticket of the alleged deteneue/ Master Mahib Sajjad Masood issued by the Medical Officer (NUHM) UPHC-V, Ramprasad Nagar, North Dum Dum Municipality. However, the reports, so submitted today by learned counsel for the private respondents, have been doubted by learned counsel for the petitioner on the score that the respondent no. 4 is enjoying a high post and it would be an easy thing for him to manipulate the medical reports of the alleged deteneue/ Master Mahib Sajjad Masood, having regard to his conduct before this Court.

7. Keeping in view the fact that the reports, so submitted today by learned counsel for the respondent no. 4, have been doubted by learned counsel for the petitioner, Chief Medical Officer of Health, Hooghly, West Bengal is directed to constitute a team of at-least two doctors, who shall examine the alleged deteneue/ Master Mahib Sajjad Masood, within a week from today and shall submit a report to mail/fax directly ([email protected]/0522-2722570) of this Court, stating therein clearly the disease with which the alleged deteneue/ Master Mahib Sajjad Masood is suffering from, the treatment being given to him and also whether alleged deteneue/ Master Mahib Sajjad Masood is in a position to travel for the purpose of his appearance before this Court. Court

8. It is clarified that in order to assess the medical condition of the alleged deteneue/ Master Mahib Sajjad Masood, the Chief Medical Officer of Health, Hooghly, West Bengal would be empowered to get some blood test done or any other tests like sonography etc which may be required to be done in order to assess the correct medical condition of the alleged deteneue/ Master Mahib Sajjad Masood.

9. It is further clarified that if, in between, deteneue/ Master Mahib Sajjad Masood recovers from the illness, as shown by the respondent no. 4 through the documents placed before this Court, the respondent no. 4, without waiting for any report, which may be submitted by the Chief Medical Officer of Health, Hooghly, West Bengal, shall produce the deteneue/ Master Mahib Sajjad Masood before this Court on the next date of listing and shall himself remain present before this Court along with the alleged deteneue/ Master Mahib Sajjad Masood, on the said date.

10. Let this matter be listed on 20.01.2025, as the 1st case, after list of fresh cases.

11. Let a copy of this order be immediately sent to the Chief Secretary/Principal Secretary (Health), Government of West Bengal, as well as to the Chief Medical Officer of Health, Hooghly, West Bengal for compliance, through the fastest mode of communication i.e. mail/fax, as the case may be.

12. The process of serving this order on the above mentioned authorities shall be supervised by the Senior Registrar of this Bench and a report shall be submitted, accordingly, pertaining to the fact that this order has been duly communicated to the said authorities.

13. Let a copy of this order be also sent to the Ministry of Education, Government of India, New Delhi so that respondent no. 4, who is working as Section Officer/Assistant Director in the Ministry of Education, Government of India, may be accorded leave for his appearance before this Court, on the date fixed above.

14. Certified copy of this order be provided to learned counsel for the parties today itself."

8. In pursuance of the order dated 10.01.2025, medical report of corpus was forwarded to the Registrar General of this Court by Chief Medical Officer of Health, Hooghly on 16.01.2025, in which, no abnormality is found.

9. Sri Shobhit Mohan Shukla, on the basis of instructions of respondent no.4 (who is residing at New Delhi) requests for some time to produce the child (who is at Hooghly, West Bengal) before this Court.

10. List this case on 06.02.2025 at 11:30 A.M.

11. Respondent no.4, namely, Sajjad Husain Masood, Mob. No. 6290475891, Email I.D.- [email protected], is directed to ensure the presence of corpus before this Court on the next date at 11:30 A.M.

12. Senior Registrar of this Court is also directed to communicate this order to Secretary, Ministry of Education, Government of India, New Delhi.

13. Sri Raj Kumar Singh, learned Senior Standing Counsel is also directed to communicate this order to Secretary, Ministry of Education, Government of India, New Delhi, who shall grant leave to respondent no.4 for his appearance along with detenue before this Court on the next date of listing. Order Date :- 20.1.2025 Arpan

2. Heard Sri Avanindra Singh Parihar, learned counsel for the petitioner, Sri Gantavya, learned Counsel for opposite party nos. 4 to 6 and perused the record.

3. On the issue of maintainability/ entertainability of the present petition, based upon the Sections 352, 354, 357 of Mulla Principles of Mahomedan Law, 21st Edition as also the facts pertaining to filing of Suit No. 99 of 2024, on 31.08.2024, under the Guardian and Wards Act, 1890 (in short 'Act of 1890') in the Court of District Judge, Hooghly, in which the next date fixed is 04.01.2025 as also the order dated 04.12.2024 passed by Child Welfare Committee, District- Hooghly (in short 'Committee') i.e. Order No. CWC(H)/1490/2024, which indicates that the next date fixed in the case is 20.12.2024, as also the observations made by the Full Bench of this Court in the judgment passed in the case of Rachna V State Of U.P. reported in MANU/UP/0316/2021, Sri Gantavya, learned Counsel for the private opposite parties, submitted that the present Habeas Corpus Petition is not maintainable and liable to be dismissed at the admission stage.

4. The principles embodied under the referred Sections are not in dispute, according to which father is entitled to the custody of a boy over seven years of age. Other facts of the case including that the corpus in this case is over seven years of age and the principles laid down in the judgment passed by this Court in the case of Rachna (Supra), are also not in dispute.

5. Considered the aforesaid and also the following facts:- (i) The marriage of Smt. Shagufta Parveen alias Shagufta Sajjad, was solemnized with opposite party no.4/Sajjad Hassan Masood on 10.04.2013 and out of this wedlock of the corpus namely Master Mahib Sajjad Masood was born on 06.09.2016. (ii) As per the recitals in the judgment dated 29.01.2024 passed in HABEAS CORPUS WRIT PETITION No. 880 of 2023 (Master Mahib Sajjad Masood And Another vs. State Of U.P. And 10 Others), Smt. Shagufta Parveen @ Shagufta Sajjad, mother of corpus (Master Mahib Sajjab Masood), was sent to her matrimonial home by her husband alongwith the corpus on 03.06.2023. (iii) The opposite party No. 4/Sajjad Hasan Masood, father of corpus, thereafter, filed the HABEAS CORPUS WRIT PETITION No. 880 of 2023, detailed above, before this Court at Allahabad, which was dismissed by this Court after taking note of the facts as indicated by the parties' counsel vide order dated 29.01.2024. The order dated 29.01.2024 on reproduction reads as under:- "1. Heard Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra, learned counsel for the petitioners, Sri Pankaj Saxena, learned A.G.A.-I appearing for the State-respondents and Sri R. P. Rajan, learned counsel for the respondent Nos. 8, 9, 10 and 11.

2. The present habeas corpus petition has been filed primarily seeking the following relief:- "1. a writ, order or direction in the nature of mandamus directing and commanding all the respondent authorities as well as private respondents to produce Master Mahib Sajjad Masood the corpus before this Hon'ble Court to set at liberty forthwith and to give custody to his natural guardian - father (petitioner no.2) to secure his future."

3. Pursuant to the rule nisi issued earlier, the petitioner No. 1 (corpus), minor child of age about seven years, has been produced in Court by respondent No. 8, his mother.

4. Respondent No. 8 is present in Court and has been identified by her counsel, Sri R. P. Rajan.

5. The petitioner No. 2, Sajjad Hasan Masood, father of the petitioner no.1 (corpus), is also present in Court, and has been identified by his counsel, Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra.

6. Learned counsel appearing for the respondent No. 8 has stated that the amount as directed by the Court vide its order dated 21.12.2023 has been received by the said respondent.

7. Counsel for the parties do not dispute the fact that looking to the age of the child, it would be difficult to ascertain his wishes and accordingly the question with regard to his guardianship and custody would be required to be considered taking into view the entirety of the facts and circumstances of the case.

8. Learned A.G.A.-I, on the basis of an inquiry from the respondent No. 8, mother of the petitioner No. 1 (corpus), in Court, submits that she has stated that she is presently living at her maternal home. She has stated that she has a post-graduate degree and is capable of looking after her son, who is presently a minor, aged about seven years. She has stated that she was sent to her maternal home by her husband, on 03.06.2023, and thereafter she has not been taken back. She has also stated that she is not averse to going back her matrimonial home, but her husband is not willing to take her back. As regards her minor son, she has stated that the child is going to school and is in good health.

9. Learned A.G.A.-I has also made an inquiry from the petitioner No. 2, in Court, and submits that he has stated himself to be in a government job. On a pointed query, he has expressed his unwillingness to take back the wife stating that there is already a talaq between them.

10. As per the pleadings in the petition, the respondent No. 8 (mother) is stated to have left her matrimonial home, on 02.06.2023, with all her certificates, jewellery and cash, alongwith her minor son, petitioner no.1 (corpus).

11. There is no material to suggest that the petitioner No. 1 (corpus) was forcibly taken away by the respondent No. 8. On the contrary, there is a clear assertion by respondent No. 8 that she was sent alongwith her minor son by the petitioner No. 2 to her maternal home and thereafter she has not been taken back.

12. The petitioner No. 2 (father of the corpus), has categorically stated that he is unwilling to take back the respondent No. 8 (mother of the corpus).

13. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 18901, and an order with regard to guardianship may be passed under the aforesaid enactment, upon an application filed by a person claiming entitlement.

14. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor.

15. Section 17 of the GWA relates to matter to be considered by the court in appointing a guardian, and in terms thereof it is provided that the court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA.

16. It is common ground between the parties that insofar as the question of custody is concerned, their rights are to be governed by the personal law.

17. The matters relating to "Guardianship of Person and Property" are provided under Chapter XVIII of Principles of Mahomedan Law2 and Part-A thereof pertains to "Appointment of Guardians". In terms of Section 349, all applications for the appointment of a guardian of the person or property or both of a minor, are to be made under the GWA.

18. Further, Section 351 of Principles of Mahomedan Law, which is in terms of Section 17 of the GWA, imposes a duty upon the court in appointing guardian to make the appointment consistently with the law to which the minor is subject, keeping in view the welfare of the minor.

19. The subject matter relating to "Guardianship of a Person of a Minor" is dealt with under Part-B of Chapter XVIII of Principles of Mahomedan Law, and Sections 352 and 353 thereof are extracted below:- "352. Right of mother to custody of infant children.—The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f).

353. Right of Female relations in default of mother.—Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:— (1) mother's mother, how highsoever; (2) father's mother, how highsoever; (3)full sister; (4) uterine sister; (5) consanguine sister; (6) full sister's daughter; (7) uterine sister's daughter; (8) consanguine sister's daughter; (9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters."

20. A conjoint reading of the aforesaid provisions indicates that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years, and failing the mother, the custody of a boy under the age of seven years, belongs to the female relatives in an order under which the mother's mother is shown first.

21. The custody of the petitioner No. 1, corpus (a male child aged about seven years), with the respondent No. 8 (his mother), cannot, therefore, be stated to be prima facie illegal.

22. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.

23. The principal duty of the Court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The principle is well settled that in such matters the welfare of the child is of paramount consideration.

24. In child custody matters, habeas corpus proceedings may not be utilized to justify or examine the legality of the custody. The power of the Court in granting the writ is qualified only in cases where detention of a minor is by a person not entitled to his/her legal custody. For the exigence of a writ, it would be required to be proved that the detention of the minor child is illegal and without any authority of law, and that the welfare of the child requires that the present custody should be changed.

25. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate legal forum.

26. The legal position in this regard has been considered by this Court in a recent judgment in Ujaif @ Noor Alam and others Vs. State of UP and others.

27. In the present case, the custody of the petitioner No. 1, corpus (a minor of aged about seven years), is presently with his mother. The material facts do not, in any manner, suggest that it is a case of illegal detention, and in view thereof, the present petition seeking a writ of habeas corpus would not be entertainable.

28. As regards the claim for custodial rights, it is always open to the parties to avail the appropriate remedy for the purpose before the proper forum.

29. The observations made hereinabove are prima facie in nature and the same would be without prejudice to the rights and contentions of the parties, which may be agitated in appropriate proceedings.

30. The rule nisi issued earlier is discharged.

31. The petitioner No. 1 (corpus), would go alongwith the respondent No. 8, to the place from where he has been brought.

32. The habeas corpus petition stands dismissed." (iv) Thus, till 29.01.2024, the custody of corpus was with his mother/Smt. Shagufta Parveen @ Shagufta Sajjad. (v) It would not be out of place to indicate that challenging the FIR/Case Crime No. 0269/2024 dated 16.07.2024 lodged by Smt. Shagufta Parveen @ Shagufta Sajjad, mother of corpus, making allegations therein so as to attract the offence as indicated under Section 137(2) of B.N.S., which deals with offence of kidnapping, at Police Station- Gosainganj, District- Lucknow, the opposite party No. 4 filed a Criminal Misc. Writ Petition No. 5449 of 2024 (Sajjad Hasan Masood vs. State Of U.P. Thru. Prin. Secy. Ministry Of Home Affairs, Civil Sectt. Lko And Others), which was dismissed by this Court vide order dated 09.08.2024. (vi) The order dated 09.08.2024 was challenged by the opposite party No. 4/Sajjad Hasan Masood before the Hon'ble Apex Court by means of a Special Leave to Appeal (Crl.) No(s). 12168/2024 and the same has also been dismissed by the Hon'ble Apex Court vide order dated 18.10.2024 (annexed as Annexure No. RA-2 to the rejoinder affidavit).

6. From the aforesaid facts as also Annexure No. 3 to this petition, which are the copies of photographs, and also the facts that after judgment and order dated 29.01.2024, quoted above, passed in Habeas Corpus Petition filed by opposite party no.4 and lodging of FIR, detailed above, on 16.07.2024 the opposite party no.4, father of corpus, filed the Suit No. 99/2024, on 31.08.2024, under the Act of 1890 and initiated the proceedings under Juvenile Justice Act, 2015, it is crystal clear that the opposite party No. 4/Sajjad Hasan Masood took the custody of child/Master Mahib Sajjab Masood (corpus) forcibly.

7. In view of aforesaid and also taking note of the observations made in the judgment passed by the Hon'ble Apex Court in the case of Tejaswini Gaud and Others Versus Shekhar Jagdish Prasad Tewari and Others reported in (2019) 7 SCC 42, this Court is of the view that the instant petition is liable to be entertained. Ordered accordingly.

8. Let the matter be listed on 19.12.2024.

9. Master Mahib Sajjab Masood (corpus) shall be produced before this Court on the next date of listing.

10. Senior Registrar of this Court is directed to communicate this order to the following authorities:- (1) District Judge, District Hooghly (2) C.J.M., District Hooghly (3) Child Welfare Committee, Hooghly, Juvenile Justice (Care and Protection of Children) Act, 2015, A Bench of Judicial Magistrate of First Class, Uttarpara, Children Home for Girls, 7, Rajmohan Road, Uttarpara, Hooghly."

6. The aforesaid order dated 12.12.2024 was challenged before Division Bench in Special Appeal No. 293 of 2024, which was dismissed vide order dated 18.12.2024, which is as under:- "1. This appeal is directed against the order dated 12.12.2024 passed by the learned Single Judge in Habeas Corpus Writ Petition No. 295 of 2024 whereby the learned Single Judge has inter alia directed production of the Corpus before the Court on the next date of listing i.e. 19.12.2024.

2. The petition in the nature of Habeas Corpus was filed by the respondent mother making allegations against the appellants inter alia of kidnapping the corpus and seeking his custody.

3. Learned Single Judge after hearing the parties and noticing the facts that in the previous proceedings initiated in the nature of Habeas Corpus by the appellants, a direction was given on 29.01.2024 that the Corpus would go with the mother, the fact that FIR/Case Crime No. 0269 of 2024 was lodged on 16.07.2024 under Section 137(2) of BNS dealing with the offence of kidnapping against which the writ petition by High Court and Special Leave Petition filed by them was rejected by Hon'ble Supreme Court, coupled with the fact of filing of a suit under Guardians and Wards Act, 1890 and initiation of proceedings under Juvenile Justice Act, 2015, by the appellants before the court at Hooghly/ C.W.C., Hooghly observed that the custody of child was taken forcibly by the appellants and directed production of the corpus.

4. Various submissions have been made pertaining to the maintainability of the writ petition in the nature of Habeas Corpus as well as the fact that Court has recorded opinion regarding the custody of the child being taken forcibly.

5. Further submissions have been made that in the previous round of litigation in the nature of Habeas Corpus, observations were made regarding parties not disputing that it is difficult to ascertain the wishes of the child looking to the age. Submissions have been made that the order passed is not justified.

6. Learned counsel for the respondents supported the order impugned.

7. The law pertaining to maintainability/entertainability of the petition in the nature of Habeas Corpus between warring parents has been dealt with in the case of Tejaswani Gaud and others Vs. Shekhar Jagdish Prasad Tiwari 2019 (7) SCC 42 wherein Hon'ble the Supreme Court has inter alia laid down that for the purpose of ascertaining the welfare of the child the powers under Article 226 of the Constitution of the India in a petition filed in the nature of Habeas Corpus can be exercised by the Court and therefore apparently it cannot be said that on the allegations made in the petition, the petition is not maintainable/entertainable.

8. Coming to the observations made by the learned Single Judge, at the present stage based on the sequence of events noted by the learned Single Judge, pertaining to the custody of the child having been taken forcibly are apparently prima facie only and it cannot be said to be a final opinion and therefore the plea raised in this regard cannot be countenanced.

9. So far as the direction given by the learned Single Judge for production of the corpus is concerned, in the circumstances of the case wherein the child admittedly at one stage was in custody of the respondents and presently in custody of the appellants and serious allegations pertaining to kidnapping have been made, the directions given by the learned Single Judge for production of the Corpus cannot be faulted.

10. In view thereof, we do not find any reason to interfere with the order impugned. There is no substance in the appeal, the same is therefore, dismissed."

7. On 19.12.2024, 07.01.2025 and 10.01.2025, following orders were passed:- Order dated 19.12.2024: "1. Shri Gantavya Kumar, learned counsel for opposite party no.4, in whose custody corpus is at District- Hooghly, State of West Bengal, as also Shri Shobhit Mohan Shukla, Advocate, who appeared before the Division Bench of this Court in Special Appeal No.293 of 2024, which was filed challenging the order dated 12.12.2024 passed by this Court in the instant petition directing the opposite party no.4 to produce the corpus before this Court on 19.12.2024 and the said Special Appeal No.293 of 2024 has been dismissed by a detailed order dated 18.12.2024, made a statement at the Bar, which should be honoured, that corpus would be produced on 07.01.2025.

2. Let the matter be listed on 07.01.2025 in top 30 cases of the cause list.

3. The corpus be produced on the date fixed.

4. In case the corpus is not produced on the next date, the Court would be compelled to issue appropriate direction to the police authorities. However, this Court expects that this situation would not arise. It is for the reason that the Members of the Bar has made a statement, indicated above." Order dated 07.01.2025: "1. Heard Shri Avanish Kumar Singh, learned counsel for the petitioner, as well as S/Shri Shobhit Mohan Shukla, B.K. Singh Gantavya, S. Shankar Dubey and Lokenath Chatterjee appearing for respondent nos. 4 to 6 as well as learned AGA for respondent nos. 1 to 3-State Authorities and perused the record.

2. Vide order dated 12.12.2024 passed by the coordinate Bench of this Court private respondents were directed to produce Master Mahib Sajjab Masood (corpus) before this Court on 19.12.2024.

3. The said order was challenged by the respondent no. 4 by filing Special Appeal No.293 of 2024, which was dismissed on merits on 18.12.2024 and the order passed by the coordinate Bench was affirmed. Thereafter, on 19.12.2024, the coordinate Bench again directed for production of the corpus on the next date of listing i.e. on 07.01.2025.

4. Today, private respondents, especially respondent no. 4, who is shown to be having the custody of the child, has sent OPD Patient Card of the corpus to his counsel and the same has been produced for perusal of this Court and has been taken on record. On the basis of this OPD Patient Card, it is claimed that the corpus is suffering from jaundice and is not in a position to travel. Without commenting anything on the authentication of this document, respondent no. 4 is directed to get the blood sample of the corpus examined for 'liver function test' and transmit a report of the same to his counsel through whatsApp/email, as the case may be, which will be placed before this Court by his counsel on 10.01.2025. It is also directed that the respondent no. 4 shall communicate to his counsel the complete address of West Bengal where the child is now residing.

5. List this matter be listed on 10.01.2025." Order dated 10.01.2025:

1. Petition called out. Learned counsel for the petitioner along with learned AGA for the State is present. No one is present for private respondents. In order to accommodate learned counsel for private respondents, the case would be taken up at 11 a.m. Learned counsel for the petitioner is directed to inform learned counsel for private respondents- Shobhit Mohan Sukla about taking up of the matter at 11 a.m.

2. As directed above, the petition called out at 11 a.m.

3. Heard Shri Avanish Kumar Singh, learned counsel for the petitioner, Shri Gantavya, learned counsel appearing for respondent nos. 4 to 6, as well as learned AGA for the respondents and perused the record.

4. Pursuant to earlier order of this Court dated 07.01.2025, some reports, which appear to have been made available by the respondent no. 4 to his local counsel at West Bengal, who in turn, has sent the same to learned counsel appearing for respondent no. 4 to 6, along with complete address where the respondent no. 4- Sajjad Husain Masood is at present living i.e. 'Karam Manzil, C/o Masood Alam (Income Tax Officer, Retd.), 33/1, N.G. Para Road, Post Angus, Pin- 712221, Police Station Bhadreswar, District Hooghly, West Bengal, have been placed for perusal of this Court

5. The reports as well as OPD Ticket of alleged deteneue/ Master Mahib Sajjad Masood and complete address of the respondent no. 4 are taken on record.

6. Perusal of the reports as well as OPD Ticket of alleged deteneue/ Master Mahib Sajjad Masood, aged about 8 years, reflect some deteriorated parameters pertaining to SGOT and SGPT, while the other parameters appear to be normal in range, except Total Bilirubin and Direct Bilirubin, which appear to be a bit high. These parameters are evident of liver disorders as is reflected from the OPD Ticket of the alleged deteneue/ Master Mahib Sajjad Masood issued by the Medical Officer (NUHM) UPHC-V, Ramprasad Nagar, North Dum Dum Municipality. However, the reports, so submitted today by learned counsel for the private respondents, have been doubted by learned counsel for the petitioner on the score that the respondent no. 4 is enjoying a high post and it would be an easy thing for him to manipulate the medical reports of the alleged deteneue/ Master Mahib Sajjad Masood, having regard to his conduct before this Court.

7. Keeping in view the fact that the reports, so submitted today by learned counsel for the respondent no. 4, have been doubted by learned counsel for the petitioner, Chief Medical Officer of Health, Hooghly, West Bengal is directed to constitute a team of at-least two doctors, who shall examine the alleged deteneue/ Master Mahib Sajjad Masood, within a week from today and shall submit a report to mail/fax directly ([email protected]/0522-2722570) of this Court, stating therein clearly the disease with which the alleged deteneue/ Master Mahib Sajjad Masood is suffering from, the treatment being given to him and also whether alleged deteneue/ Master Mahib Sajjad Masood is in a position to travel for the purpose of his appearance before this Court. Court

8. It is clarified that in order to assess the medical condition of the alleged deteneue/ Master Mahib Sajjad Masood, the Chief Medical Officer of Health, Hooghly, West Bengal would be empowered to get some blood test done or any other tests like sonography etc which may be required to be done in order to assess the correct medical condition of the alleged deteneue/ Master Mahib Sajjad Masood.

9. It is further clarified that if, in between, deteneue/ Master Mahib Sajjad Masood recovers from the illness, as shown by the respondent no. 4 through the documents placed before this Court, the respondent no. 4, without waiting for any report, which may be submitted by the Chief Medical Officer of Health, Hooghly, West Bengal, shall produce the deteneue/ Master Mahib Sajjad Masood before this Court on the next date of listing and shall himself remain present before this Court along with the alleged deteneue/ Master Mahib Sajjad Masood, on the said date.

10. Let this matter be listed on 20.01.2025, as the 1st case, after list of fresh cases.

11. Let a copy of this order be immediately sent to the Chief Secretary/Principal Secretary (Health), Government of West Bengal, as well as to the Chief Medical Officer of Health, Hooghly, West Bengal for compliance, through the fastest mode of communication i.e. mail/fax, as the case may be.

12. The process of serving this order on the above mentioned authorities shall be supervised by the Senior Registrar of this Bench and a report shall be submitted, accordingly, pertaining to the fact that this order has been duly communicated to the said authorities.

13. Let a copy of this order be also sent to the Ministry of Education, Government of India, New Delhi so that respondent no. 4, who is working as Section Officer/Assistant Director in the Ministry of Education, Government of India, may be accorded leave for his appearance before this Court, on the date fixed above.

14. Certified copy of this order be provided to learned counsel for the parties today itself."

8. In pursuance of the order dated 10.01.2025, medical report of corpus was forwarded to the Registrar General of this Court by Chief Medical Officer of Health, Hooghly on 16.01.2025, in which, no abnormality is found.

9. Sri Shobhit Mohan Shukla, on the basis of instructions of respondent no.4 (who is residing at New Delhi) requests for some time to produce the child (who is at Hooghly, West Bengal) before this Court.

10. List this case on 06.02.2025 at 11:30 A.M.

11. Respondent no.4, namely, Sajjad Husain Masood, Mob. No. 6290475891, Email I.D.- [email protected], is directed to ensure the presence of corpus before this Court on the next date at 11:30 A.M.

12. Senior Registrar of this Court is also directed to communicate this order to Secretary, Ministry of Education, Government of India, New Delhi.

13. Sri Raj Kumar Singh, learned Senior Standing Counsel is also directed to communicate this order to Secretary, Ministry of Education, Government of India, New Delhi, who shall grant leave to respondent no.4 for his appearance along with detenue before this Court on the next date of listing. Order Date :- 20.1.2025 Arpan