LexGOHAR BEGAM versus SUGGI ALIAS NAZMA BEGAM AND OTHERS
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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 hims
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