S.C.R. SUPREME COURT REPORTS . 597

GOHAR BEGAM

v.

SUGGI ALIAS NAZMA BEGA:M: AND OTHERS

(JAFER IMAM, A. K. SARKAR and K. N. W ANCHOO, JJ.)

Habeas Corpus-Application for recovery of child-Duty of

Court-Alternative remedy, if a bar-Principles applicabU-Crimi­

nal Procedure Code, z898 (V of z898), s. 49z.

An unmarried Sunni Muslim mother of an illegitimate female

child made an applicatio11 under s. 49r of the Code of Criminal

Procedure for the recovery of the child from the respondents.

Held, that under the Mohammedan Law the mother of an

illegitimate female infant child is entitled to its custody. The

refusal to restore such a child to the custody

of its mother would

result in an illegal detention

of the child within the meaning of

s. 49r of the

Criminal Procedure Code. A dispute as to the

paternity

of the child is irrelevant for the

puf pose of the

application. The Supreme Court will. interfere with the discre­

tionary powers of the High Court if the discretion was no.t

judicially exercised.

Held, also, that before making the order for the custody of

the child the court is called upon to consider its welfare.

Hel.d, further, that the fact that a person has a remedy under

the Guardian and Wards Act, is

no justification for denying him

the remedy under

s. 49r of the

Criminal Procedure Code.

Held, further, that in issuing writs uf habeas carpus the courts

have power in the case of an infant to direct its custody to be

placed with a certain person.

The Queen v. 'Clarke, (1857) 7 E.L. & B.L. 186 and The Kinf!

v. Greenhill, (1836) AD & E. 624, relied 011.

Zara Bibi v. Abdul Razzak, (1910) XU Born. L.R. 891 ;

SubbusitJami Gounden v. K. Kamakshi Ammal., (1930) I.L.R. 53

Mad. 72 and Rama Iyer v. Nata Raja Iyer, A.tR 1948 Mad.

294, referred to.

Cm:MINAL .APPEl:.LATE JURISDICTION : Crbninal

.A,ppea.l No. 11 of 1959.

• Appeal by special leave from the judgment and

order dated April 30, 1958, of the Bombay High Court

in Criminal Application No. 508 of 1958.

K. M. Desai and J. N. Shroff, for the appellant;

G'anpat Rai, for respondents Nos. 1 to 4 and 6.

K. L. Hathi and R. H. Dhebar, for respondent No. 5.

76

I9$9

August z7.

598 SUPREME COURT REPORTS [1960(1))

z959 1959. August 27. The Judgment of the Court was

Gohar Begam delivered by

v.

Suggi alias

Nazma Begam

and Others

Sarkar j.

SARKAR J.-The appellant is an unmarried Sunni

Moslem woman. She has an infant female illegitimate

child called Anjum. The appellant made

an applica­

tion

to the High

Court at Bombay under s. 491 of the

Code of Criminal Procedure for the recovery of the

custody of the child from the respondents. That the

application was refused. Hence this appeal.

The appellant's case is as follows: She is the daugh­

ter ~one Panna B~i. The respondent Kaniz Begum

is Panna Bai's sister. Kaniz Begum,. whom it will be

convenient

to refer as the respondent, took the

appellant over from Panna Bai and brought her up.

Prior to 1951 the respondent had put her in the

keeping of two persons and had thereby made pecuniary

gain for herself.

In 1951 the appellant met one Trivedi

and since then she was been living continuously in his

exclusive keeping. The appellant stayed with Trivedi

at Jabalpur up to 1954.

On September 4, 1952,

the child Anjum was born to her by the said

Trivedi.

In November 1953 she bore another child

to him of the name of Yusuf alias Babu]. In

1954 the appellant with her said

, two children, her

mother who had been living with her, and Trivedi

left

Jabalpur and came to live in Bombay. After

coming

to Bombay, Trivedi for sometime lived with

his relatives as he could not find independent

ac­

commodation. During this time, the appellant with

her children and mother stayed with the respondent

who was

then living in Bombay, but Trivedi used to

visit the appellant daily at the residence of the

respond­

ent. In January 1956 the appellant bore a third

child to Trivedi called Unus alias Chandu. After the

birth of Unus, Trivedi took the appellant, her mother

and the two younger children to a hill station near

Bombay called Khandala and the party stayed there

for three or four months. At the time the appellant

had gone to Kandala, the respondent went to Pakistan

on a temporary visa and she took tl,ie child Anjum

with her presumably with the consent of the appellant,

..

S.C.R. SUPREME COURT REPORTS 599

After returning from Khandala, Trivedi was able to

secure a flat for himself

in Marine Drive, Bombay

and the appellant with her

Il).Other and two sons regan

to stay with him there. In April 1957 Trivedi moved

into

another flat in Warden Road, Bombay, with the

appellant, her two younger children and mother and

has since then been living there with them. After the

respondent returned from Pakistan with Anjum, the

appellant who had then moved into the flat in Marine

Drive, asked

the respondent to send Anjum to her but

the respondent refused to do so.

Since then the

respondent has been refusing to restore the custody of

the child Anjum to the appellant.

In these circumstances, the appellant made her

application under

s. 491 of the

Code of Criminal Pro­

cedure on April 18, 1958. She stated that she appre­

hended that the respondent would remove • Anjum to

Pakistan any day and there was already a visa for

Anjum available for

that purpose.

She also stateq

that in view of the relationship between the parties

she

had not earlier taken the matter to court.

On the

date of the application the respondent was away in

Pakistan. She had not however taken the child Anjum

with her but had left her in her flat at Bombay in

charge of her cousin Suggi and an Aya, Rozi Bhangera.

The appellant stated that the respondent had asked

her sister Bibi B11>noo and the latter's husband Mahomed

Yakub Munshi to look after the child. The appellant

had therefore made these four. persons only the res­

pondents to her application. Later, on the respondent's

arrival back in Bombay, she also was made a party to

the application. The other respondents contended in

the High Court that they had nothing to do with the

child and had been made parties to the application

unnecessarily. They have

not appeared

in this appeal

It is clear however that they did not make over the

custody of the child Anjum to the appellant when the

application was made and the affidavits filed by them

leave no doubt that their sympathies are with the

respondent Kaniz Begum. The state of Bombay was

also made a respondent to the application, but that

was a mere matter of form. The State has no interest

I959

Gohar Begam

v.

. Suggi alias

Nazma Begam

and Others

Sarkar].

600 SUPREME COURT REPORTS [1960(1))

I959 in the case and has not taken any part in the pro­

ceedings.

Gohar Begam T

v. he respondent opposed the application denying the

suggi alias . correctness of some of the allegations made in the

Nazma Begam petition of the appellant. She denied that Trivedi

and Others was the father of the child Anjum and said that the

Sarkar].

father was a Shia Moslem called Samin Naqui. She

said

that the appellant's mother had given the

appel­

lant to her to bring up when very young as she had

not the means to do so herself and since then the

appellant had been living with her all along and left

her flat

in company with Trivedi only during her

temporary absence in

Pakistan in 1956. She denied

that she had made the appellant live in the keeping of

any person as alleged by the latter. She contended

that she had intended that the appellant would marry

and live a clean and respectable life but other influences

operated upon her

and she went to live with Trivedi as his mistress. She denied that she had prevented

the appellant access to the child Anjum as the latter

stated. She contended that she was looking after the

child Anjum with great care and solicitude, and had

put her in a good school and kept a special Aya for her.

She also said

that she was well off and had enough

means

to look after the child well. She contended

that it

was not in the interest of the child to live with

the appellant because she was living in the keeping of

a man who might turn her out and she would then

have to seek the protection of another man. She said

that she had no child of her own and was fond of

Anjum whom she had been treating as her own child.

The learned Judges of the High Court observed that

the case raised various controversial questions, spe­

cially as to the paternity of the child, as to whether

the respondent had made the appellant live in the

keeping of different persons and also as to whether she

had prevented the appellant from having access to the

to the child. The learned Judges observed that it was

not the function ofa court in an application under

s. 491 to record findings on such controversial facts

and that, in these circumstances, the proper forum

for the appellant was to move a civil court under the

S.C.R. SUPREME COURT REPORTS 601

Guardian and '\Vards Act for the custvdy of the child.

The learned Judges further observed

that they were

prima facie satisfied

that the child was not illegally

and improperly detained by the respondents. They

therefore dismissed

the appellant's application.

We are unable

to appreciate the view the learned

Judges

of the High

Court. It seems to us that the

controversial facts referred to by them were wholly

irrelevant

to the decision of the

application. We have

not been able to find one single fact relevant to the

issue in this case which is in controversy. The facts,

which are apundantly clear

and beyond dispute are

these. The child Anjum is

the illegitimate daughter

of the appellant who is a moslem woman. The child

was· at the date of the application less than. six yea.rs'

old

and now she is just over seven years old. The ll.ppellant is a singing girl by profession and so is the

respondent. The appellant stated in her affidavit

that the respondent was in the keeping of a man and

this the respondent has not denied. It is not the res­

pondent's case. that she is a married woman leading a

respectable life. In fact she admits that she allowed

Trivedi

to live in her flat with the appellant as his

mistress

and took money from him for

" Lodging and

Boarding Charges". Trivedi has sworn an affidavit

acknowledging

the paternity of the child and

under­

taking to bring her up properly as his own child. He

is a man of sufficient means and the appellant has

been for a considerable time living with him as his

mistress.

On these undisputed facts the position in law is per­

fectly 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 appal.

lant. thereforti resulted in an illegal detention of the

child within the meaning of a. 491. This position is

clearly recognised in the English cases concerning

writs

of

habeas corpus for the production of infants.

r959

Gohar Begam

v.

Suggi alias

Nazma Begam

anti Others

Sarkar].

I959

Gohar Begam

v.

Suggi alias

Nazma Begant

and Others

Sa~kar ].

602 SUPREME COUR'l' REPORTS (1990(1))

In The Queen v. Clarke(') Lord Campbell, C. J., said

at p. 193:

" 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 consistenly taken the

same view. For this purpose the Indian cases herein­

after cited may be referred to. The terms of s. 491

would clearly be applicable to the case and the appel­

lant entitled to the order she asked.

We therefore

think that the learned Judges of the

High

Court were clearly wrong in their view that the

child Anj,um 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 that view is unsustainable in law.

Before

making the order the court is certainly

called upon to consider

the welfare of the infant

con­

cerned. Now there is no reason to think that it is in

the intf)rest of the child Anjum to keep her with the

respondent. In this connection it is relevant to state

that at some stage of the proceedings in the High Court

the parties appeared to have arrived at a settlement

whereby it had been agreed that the child Anjum

would be in

the custody of the appellant and the

res­

pondent would have access to the child. The learned

Judges of the High Court however were not prepared

to make an order in terms of this settlement because,

as they said, "It did not appear to be in the interest

and welfare of the minor". Here again they give no

reason for their view. Both parties belong to the

community of singing girls. The atmosphere in the

home of either is the same. The appellant as the

mother can be expected to take better care of the child

than the respondent. Trivedi has ackn~wledged the

paternity of the child. So in law the child can claim

to be maintained by him. · She has no such right

against the respondent. We have not been,able to

find a single reason how the interests of the child

(1) (1857) 7 E.L. & B.L. 186: 119, E. R. 1217.

S.C.R. SUPREME COURT REPORT8 603

would be better served if she was left in the custody of

the respondent and not with the appellant.

We further see no reason why the appellant sh.ould

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 s. 491 of the Code. The fact that she had

:;i· right under the Guardians and Wards Act is no

justification for denying her

the right under s. 49L

That is well established as will appear from the cases

hereinafter cited .

.

The learned Advocate for the respondent said, we

should not interfere with

·the order of the High Court

· as it was a discretionary order. The learned Judges

however have not given any reason which led them to

exercise their discretion in the way they did. We are

are not satisfied that the discretion was judicially

exercised.

We are clear in our view that the judgment of the

High

Court was wrong and should be set aside.

It is further well established in England that in

issuing a writ of habeas corpus a court has power in

t.he case of an infant to direct its custody to be placed

with a certain person. In The King v. Greenhill (1)

Lord Denman, ·c, J., said:

"When an infant is brought before the Court by

habeas corpus, if he be of an age to exercise a choice,

the Court leaves him to elect where he will go. If

he be not of that age, and a want of direction would

only expose him

to dangers or seductions, the

Court

must make an order for his being placed in the

proper custody."

See also The Queen v. Clarke (

9

). In Halsbury's Laws

of England, Vol. IX, art. 1201 at p. 702 it is said;

" Where, as frequently occurs in the case of

infants, conflicting claims for the custody of the

same individual are raised, such claims may be

enquired into on

the return to a writ of habeas

(1) (1836) 4 AD & E

624, 640; III E.R. 922, 927.

(2) (1857) 7 E.L. ii; B.L. i86: u9 E.R. 1217.

Gohar Begam

v.

Suggi alias

Nazma Begam

and Others

Sarkar].

1959

Gohar Begam

v.

Suggi alias

Nazma Begam

and Others

Sarkar].

604 SUPREME COURT REPORTS [1960(1)]

corpus,

and the custody awarded to the proper

person."

Section 491 is expressly concerned with the directions

of the nature of a habeas corpus. The English prin­

ciples applicable to the issue of a writ of ltaheas

corpus, therefore, apply here. In fact the Courts in

our country have always exercised the power to direct

under

s. 491 in a fit case that the custody of an infant

be delivered to the applicant: see Rama Iyer v.

Nataraja

Iyer(•), Zara Bibi v. Abdul Razzak (•), and

Subbuswami Goundan v. Kamakslti Ammal ('). If the

the

courts did not have this power, the remedy under

s. 491 would in the case of infants often become

infructuous.

We, therefore, set aside

the judgment and order

o±

the High Court and direct the respondents other than

the State of Bombay to make over the custody of the

child Anjum to the appellant. Let the child be pro­

duced by the respodents before the Registrar, Appel­

late Side, High Court of Bombay, and the Registrar

will

than make over custody to the appellant. The

passport in respect of the child Anjum deposited in

this

Court by the respondents may be made over to

the Advocate on record for the appellant. The in­

junction restraining the removal of the child Anjum

outside Greater Bombay will continue till she is deli­

vered to the appellant.

Appeal allowed.

(1) A.1.R. 1948 Mad. 294. (•) (1910) XII Bom.L.R. 891.

(3) (1930) I.L.R. $3 Mad. 7.,