Gohar Begam vs Suggi Alias Nazma Begam And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 11 of 1959

Decision Date: 27 August 1959

Coram: A.K. Sarkar, Syed Jaffer Imam, K.N. Wanchoo

In Gohar Begam versus Suggi Alias Nazma Begam and Others, the Supreme Court of India delivered its judgment on 27 August 1959. The case was authored by Justice A K Sarkar, who sat together with Justices Syed Jaffer Imam and K N Wanchoo. The petitioner, Gohar Begam, pursued relief against the respondents, Suggi Alias Nazma Begam and others. The reported citation for this decision appears as 1960 AIR 93 and 1960 SCR (1) 597. The matter concerned an application for the issuance of a habeas-corpus writ under the Criminal Procedure Code of 1898, specifically section 49 r, seeking the recovery of a child. The headnote records that an unmarried Sunni Muslim mother of an illegitimate female infant applied for custody of the child pursuant to section 49 I of the Code of Criminal Procedure, and the Court held that under Mohammedan law the mother is entitled to custody of an illegitimate female child.

The Court further observed that refusing to restore the child to the mother would amount to illegal detention within the meaning of section 49 I, and that any dispute regarding the child’s paternity was irrelevant to the relief sought. It stated that the Supreme Court would intervene in the discretionary jurisdiction of a High Court only where such discretion had not been exercised judicially. The Court also emphasized that before ordering custody, the welfare of the child must be considered, and that the existence of a remedy under the Guardian and Wards Act does not preclude reliance on section 49 I of the Criminal Procedure Code. Moreover, the Court affirmed that, in granting habeas-corpus writs concerning infants, the courts possess authority to direct the child’s custody to a specified person. The judgment relied upon authorities such as The Queen v Clarke (1857) 7 E L & B L 186, The King v Greenhill (1836) AD & E 624, Zara Bibi v Abdul Razzak (1910) XII Bom L R 891, Subbuswami Gounden v K Kamakshi Ammal (1930) I L R 53 Mad 72, and Rama Iyer v Nata Raja Iyer AIR 1948 Mad 294.

The criminal appellate jurisdiction involved Criminal Appeal No 11 of 1959, which was filed by special leave against the Bombay High Court’s order dated 30 April 1958 in Criminal Application No 508 of 1958. Counsel for the appellant included K M Desai and I N Shroff, while Ganpat Rai represented respondents 1 through 4 and 6, and K L Hathi together with B H Dhebar appeared for respondent 5. On 27 August 1959, Justice Sarkar delivered the judgment, noting that the appellant was an unmarried Sunni Muslim woman who had an infant illegitimate daughter named Anjum. The appellant had applied to the Bombay High Court under section 491 of the Code of Criminal Procedure for the recovery of Anjum’s custody from the respondents, but the High Court refused the relief, prompting the present appeal.

In this case the Court recorded that the appellant was the daughter of a woman named Panna Bai and that the respondent, Kaniz Begum, was the sister of Panna Bai. The Court therefore described Kaniz Begum, hereafter referred to as the respondent, as having taken the appellant from her mother’s care and raised her as her own. Before the year 1951 the respondent placed the appellant in the household of two other persons and, according to the evidence, obtained a financial benefit from that arrangement. In 1951 the appellant met a man named Trivedi, and from that time onward she lived continuously under his exclusive care. The appellant and Trivedi resided together in Jabalpur until 1954. On 4 September 1952 the appellant gave birth to a daughter named Anjum while living with Trivedi. In November 1953 she bore a second child, a son named Yusuf alias Babul, also to Trivedi. In 1954 the appellant, together with her two young children, her mother who had been staying with her, and Trivedi, left Jabalpur and moved to Bombay. After arriving in Bombay, Trivedi was unable to obtain his own accommodation for a short period and therefore stayed with his relatives. During that interval the appellant, her children and her mother lodged with the respondent, who at that time was residing in Bombay, while Trivedi visited the appellant each day at the respondent’s residence. In January 1956 the appellant gave birth to a third child, a son called Unus alias Chandu, again fathered by Trivedi. Following the birth of Unus, Trivedi took the appellant, her mother and the two younger children to a hill-station near Bombay known as Khandala, where the family remained for three or four months. While the appellant and her family were at Khandala, the respondent travelled to Pakistan on a temporary visa and, with what appears to have been the appellant’s consent, took the child Anjum with her. After the family returned from Khandala, Trivedi succeeded in securing a flat for himself on Marine Drive in Bombay, and the appellant, her mother and her two younger sons moved in with him there. In April 1937 Trivedi shifted to another flat on Warden Road, Bombay, taking the appellant, her mother and her two younger children with him, and they have lived there continuously since that time. When the respondent returned from Pakistan with Anjum, the appellant, who by then was living in the Marine Drive flat, requested that the respondent send Anjum back to her, but the respondent declined. Since that refusal the respondent has continued to deny the appellant any custody of Anjum. Consequently, on 18 April 1958 the appellant filed an application under section 491 of the Code of Criminal Procedure, seeking the recovery of custody of Anjum. In that application the appellant asserted that she feared the respondent would take Anjum to Pakistan at any moment, noting that a visa for Anjum to travel to Pakistan was already available. She also explained that, because of the familial relationship between herself and the respondent, she had not earlier approached the court for relief. At the time the application was made the respondent was abroad in Pakistan; however, the respondent had not taken Anjum with her but had left the child in a flat in Bombay under the charge of her cousin Suggi and an attendant named Rozi Bhangera.

In the application the child was left in Bombay under the charge of the appellant’s cousin Suggi and an aya named Rozi Bhangera. The appellant asserted that the respondent had asked her sister Bibi Banoo and Bibi Banoo’s husband Mahomed Yakub Munshi to look after the child. Consequently, the appellant identified these four individuals—Suggi, Rozi Bhangera, Bibi Banoo and Mahomed Yakub Munshi—as respondents to her petition. After the respondent returned to Bombay, the respondent herself was also joined as a party to the application. The four other respondents later told the High Court that they had no involvement with the child and that their inclusion in the petition was unnecessary; they did not appear before this appeal. Nevertheless, it was evident that none of those four had transferred custody of the child Anjum to the appellant when the petition was filed, and the affidavits they filed made clear that their sympathies lay with the respondent, Kaniz Begum. The State of Bombay was also listed as a respondent, but this was only a procedural formality; the State had no interest in the matter and did not participate in any of the proceedings. The respondent opposed the petition and denied the accuracy of several allegations made by the appellant. She denied that Trivedi was Anjum’s father, contending instead that the child’s father was a Shia Muslim named Samin Naqui. She explained that the appellant’s mother had entrusted the appellant to her care when the appellant was very young because the mother lacked means, and that from that time the appellant had lived with her continuously, leaving the appellant’s flat only during a brief period in Pakistan in 1956 when she was in the company of Trivedi. The respondent also rejected the appellant’s claim that she had placed the appellant in the keeping of any other person. She maintained that her original intention was that the appellant would marry and lead a respectable life, but that other influences caused the appellant to become Trivedi’s mistress. The respondent further denied that she had prevented the appellant from accessing Anjum, stating that she cared for Anjum with great solicitude, had enrolled the child in a good school, and employed a special aya for her. She asserted that she was financially well-off and possessed sufficient resources to look after the child properly. Moreover, the respondent argued that it would not be in the child’s best interest to live with the appellant, because the appellant was residing with a man who might later cast her out, forcing the child to seek protection from another man. She added that she had no biological children of her own, was fond of Anjum, and treated the child as if she were her own. The learned judges of the High Court observed that the case raised several controversial questions, particularly concerning the child’s paternity, whether the respondent had placed the appellant in the keeping of various persons, and whether the respondent had barred the appellant from accessing the child.

The Court noted that the contested issues concerned the child being kept by different persons and whether the respondent had prevented the appellant from accessing the child. It observed that, in an application filed under section 491, it was not the role of the court to make findings on such controversial facts, and that the appropriate remedy for the appellant was to approach a civil court under the Guardian and Wards Act for custody of the child. The learned Judges further stated that, on a preliminary basis, they were satisfied that the child was not being illegally or improperly detained by the respondents, and consequently they dismissed the appellant’s application. The Supreme Court expressed inability to accept the High Court’s view, holding that the controversial facts identified by that court were wholly irrelevant to the decision on the application. It could not locate a single fact that remained in dispute. The Court then listed the facts that were clear and undisputed. The child, Anjum, was the illegitimate daughter of the appellant, who was a Muslim woman. At the time of the application the child was under six years of age and is now just over seven years old. Both the appellant and the respondent were employed as singing girls. In the appellant’s affidavit it was stated that the respondent was being kept by a man, a statement the respondent did not deny. The respondent did not claim to be a married woman living a respectable life; instead she admitted that she had permitted a man named Trivedi to reside in her flat as her lover and that she received money from him for “lodging and boarding charges.” Trivedi had sworn an affidavit acknowledging that he was the father of the child and undertaking to raise her properly as his own child. He was described as a man of sufficient means, and the appellant had, for a considerable period, lived with him as his mistress. On the basis of these undisputed facts, the Court held that the law was clear. Under the applicable Mohammedan law, the appellant was entitled to custody of Anjum, her illegitimate daughter, irrespective of who the father was. The respondent possessed no legal right to the child’s custody. Her refusal to hand over the child to the appellant therefore amounted to an illegal detention within the meaning of section 491. This principle was supported by English authority on habeas-corpus writs for infants, specifically The Queen v. Clarke, where Lord Campbell, C.J., said at page 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 this country have likewise recognized this position.

The Court noted that Indian jurisprudence has consistently adopted the same principle, and that the Indian cases cited later in the judgment may be referred to for support. It held that the provisions of section 491 of the Code were plainly applicable to the present facts and that the appellant was therefore entitled to the relief she sought. Consequently, the Court concluded that the learned Judges of the High Court were plainly erroneous in holding that the child Anjum was not being detained illegally or improperly. The High Court judges, the Court observed, had offered no reasons to justify their conclusion and the view expressed by them was unsustainable in law. Before granting any order, a court must inevitably examine the welfare of the infant concerned. In the present case there was no basis to think that retaining the child with the respondent would be in the child’s best interest. The Court further pointed out that, at an intermediate stage of the High Court proceedings, the parties appeared to have reached a settlement whereby it was agreed that Anjum would remain in the appellant’s custody while the respondent would retain visitation rights. Nevertheless, the learned Judges of the High Court declined to make an order reflecting that settlement, stating that “ It did not appear to be in the interest and welfare of the minor ”. The Court remarked that the judges again failed to provide any reasons for this assessment.

Both parties belong to the same community of singing-girls, and the atmosphere in either home was described as identical. The Court reasoned that, as the mother, the appellant could be expected to provide better care for the child than the respondent could. The father, identified as Trivedi, had acknowledged paternity, and therefore, under law, the child could claim maintenance from him, but she possessed no comparable right against the respondent. The Court could locate no justification, either in authority or fact, for the proposition that the child’s interests would be better served if she remained with the respondent rather than with the appellant, citing the authority (1) (1857) 7 E.L. & B.L. 186: 119, E. R. 1217. Moreover, the Court saw no reason for the appellant to be required to invoke the Guardians and Wards Act to recover custody; she already possessed a clear right to an order under section 491 of the Code. The existence of a right under the Guardians and Wards Act did not, the Court held, justify denying the appellant her right under section 491, a point supported by the cases subsequently cited. The learned Advocate for the respondent argued that the High Court’s order should not be disturbed because it was a discretionary one. However, the Court observed that the High Court judges had not explained the reasons for exercising their discretion in the manner they did. Accordingly, the Court was not satisfied that the discretion had been exercised judicially and affirmed that its own view was clear.

The Court held that the judgment of the High Court was erroneous and therefore ought to be set aside. It further observed that English authority is clear that, when a writ of habeas corpus is issued in respect of an infant, the court possesses the power to order that the infant’s custody be placed with a particular person. In the case of The King v. Greenhill (1), Lord Denman, Chief Justice, stated that when an infant is brought before the court by way of habeas corpus, if the child is of an age to make a choice, the court allows the child to decide where he will go; however, if the child is not of that age and a lack of direction would expose him to danger or temptation, the court must order that the child be placed in proper custody. The Court also referred to The Queen v. Clarke (2) for similar principles. In Halsbury’s Laws of England, volume IX, article 1201, page 702, it is explained that where, as often happens with infants, conflicting claims to the custody of the same individual arise, such claims may be investigated upon the return of a writ of habeas corpus, and custody may be awarded to the proper person. Section 491 of the Code is expressly concerned with directions of the nature of a habeas corpus, and consequently the English principles applicable to habeas corpus are relevant to the present dispute. The Court further noted that Indian courts have consistently exercised the power under section 491 to direct, in appropriate cases, that the custody of an infant be delivered to the applicant, citing Rama Iyer v. Nataraja Iyer (1), Zara Bibi v. Abdul Razzak (2), and Subbuswami Goundan v. Kamakshi Ammal (3) as authorities. The Court observed that without such power, the remedy provided by section 491 would frequently prove ineffective in matters involving infants. Accordingly, the Court set aside the judgment and order of the High Court and directed that all respondents, except the State of Bombay, hand over the custody of the child named Anjum to the appellant. The child was to be produced by the respondents before the Registrar of the Appellate Side of the Bombay High Court, after which the Registrar would transfer custody to the appellant. The passport of the child Anjum, which had been deposited in this Court by the respondents, was ordered to be handed over to the counsel on record for the appellant. The injunction restraining the removal of the child Anjum from the Greater Bombay area was to remain in force until she was delivered to the appellant. The appeal was allowed.