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Writ Petition No. 154 of 1955, decided on 5th September 1956.

Offspring of Muslim father and Jewess mother- Welfare of minors-Improper to hand over to mother who was of Indian nationality and was residing in India

Art. 170-Guardians and Wards Act (VIII of 1890), S. 17. .

Custody of two minors-a boy and a girl-offspring of Muslim father, by a Jewess, whose marriage was solemnised according to Muslim rites, was the subject of a dispute, after dissolution of their marriage, in a habeas corpus petition lodged by the mother who was of Indian nationality and was residing in India.

Held that it was improper to give the custody of the two Muslim children to a Jewess mother who was an Indian national and was residing in India.

Subbarathnamal v. Seshachala Naidu A I R 1931 Mad. 478 and Abbasi S. M. v. Sultan Hamid Khan A I R 1955 N. U. C. (Madh. B) 3697 rel.

Riaz Hashmi for Petitioner.

Aziz for Respondents.

MUHAMMAD BAKHSH, J.--

-This is a petition for a writ of habeas corpus in respect of the two minor children, a boy and a girl, of the Petitioner, who is their mother. Respondent No. 1 is the father of the children while Respondents Nos. 2 and 3 are the brothers and Respondent No. 4 is the sister of Respondent No. 1. The petitioner is a jewess and was married to the Respondent No. 1 according to the Muslim Law on 11th November 1943. A son named Anwar was born to them on 4th May 1948 and daughter Talat on 29th November 1949. The husband and wife were then living in Calcutta. Owing to disagreement between them the Peti tioner filed a suit in the Calcutta High Court in 1952 for dis solution of marriage, custody of the children their maintenance and dower. Temporary custody of the two children was given to the Petitioner. On 16th March 1954 the Petitioner's suit was decreed and the marriage between the couple was declared dissolved with effect from 19th February 1952. The custody of the children was also given to the Petitioner. Thereafter the Respondent No. 1 made an application to the High Court of Calcutta in July 1954 that he should be permitted to put the two children in a respectable boarding school at Darjeeling. Requisite permission was given and then the Respondent brought over the children to Karachi. Contempt proceedings were drawn up in the Calcutta High Court against him and he was in absentia sentenced and committed to prison until further orders of the Court. The Petitioner then filed a criminal prosecution against the Respondent No. 1 for kidnapping the two children. As the Respondent could neither be served nor did he attend the Court he is alleged to have been declared a proclaimed offender. In Pakistan the Respondent No. 1 is said to have handed over the two children to his two brothers and sister where, according to the Petitioner, they are being wrongfully confined and detained. The Petitioner has thereafter instituted a criminal case against Respondent No. 1 under section 368 P. P. C. in the City Court at Karachi and that case is still pending. Thereafter the Petitioner has filed this petition for a writ of habeas corpus praying that the two children be brought up before the Court and dealt with according to law.

The petition is contested by the Respondent No. 1 on all the points.

It will be seen that the petition has not been filed under the Guardians and Wards Act but has been filed under the Constitution for a writ in the nature of habeas corpus.

The Petitioner has reverted to her Jewess faith and is at present a national of India, while the Respondent No. 1 is a national of Pakistan. Without going into the question regarding the various allegations that have been made by the Petitioner and denied by the Respondent No. 1, it is possible to dispose of this petition on the above ground. Although the Petition has been made for a writ of habeas corpus, it is natural to consider the question from the point of view of the welfare of minors. In the case of Subbarathnammal v. Seshachala Naidu (A I R 1931 Mad. 478), it was held as follows:

"It is against the intention of the Act that anyone residing outside British India should be appointed guardian of a minor's person, as over such guardian the Court cannot exercise its proper control."

In another case of Abbasi S. M. v. Sultan Hamid Khan(A I R 1955 N. U. C. (Madh. B.) 3697), their Lordships have gone further and decided as follows:

"Where the person who has applied for the custody of his children is a national of Pakistan and is living in Pakistan, it is sufficient in itself to show that it would not be in the interest of the minors to hand them over to the custody of such person."

Several other rulings have been referred to in this case.

In view of this position, we gave a lot of time to the Petitioner to apply and get a Pakistani nationality in order that we might consider the question whether it was desirable in that circumstance to give the custody of the children to her she, has so far failed in getting the Pakistani nationality.

The learned Advocate for the Petitioner referred to some rulings and argued that the Respondent No. 1 had committed contempt of the High Court of Calcutta and therefore he should not be given the custody of the children. We are not concerned with that question. It is the Calcutta High Court which has got to deal with a case of contempt committed with respect to it. We think it improper to give the custody of the two Muslim children to a Jewess mother who is an Indian national and is residing in India.

We accordingly dismiss this writ petition and make no order as to costs.

A. H. Petition dismissed.

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