Case Note & Summary
The case involved an application for the recovery of an illegitimate child, Anjum, by her unmarried mother, Gohar Begam, from the custody of Suggi alias Nazma Begam and others. The appellant, Gohar Begam, claimed that the child was unlawfully detained by the respondents, who were related to her. The High Court had previously dismissed her application, stating that the matter should be resolved under the Guardian and Wards Act instead. The Supreme Court found that the High Court's reasoning was flawed, as the mother had a clear right to custody under Section 491 of the Code of Criminal Procedure, 1898. The court noted that the child was less than six years old at the time of the application and emphasized that the welfare of the child was paramount. The court also highlighted that the respondent had no legal right to the child's custody and that the refusal to return the child constituted illegal detention. The Supreme Court set aside the High Court's order and directed the respondents to return the child to the appellant, ensuring that the child's passport was also returned and that she would not be removed from Greater Bombay until the custody was transferred. The appeal was allowed.
Headnote
A) Family Law - Custody of Illegitimate Child - Mother's Right to Custody - Code of Criminal Procedure, 1898, Section 491 - The court held that under Mohammedan Law, the mother of an illegitimate child is entitled to custody, and refusal to restore custody results in illegal detention. The court emphasized that the welfare of the child must be considered, and the existence of an alternative remedy under the Guardian and Wards Act does not bar the remedy under Section 491. (Paras 1-2).
Issue of Consideration
Whether the mother of an illegitimate child is entitled to its custody under Section 491 of the Code of Criminal Procedure, 1898.
Final Decision
The Supreme Court set aside the High Court's order and directed the respondents to return the custody of the child Anjum to the appellant, emphasizing that the refusal to do so constituted illegal detention.
Law Points
- Habeas Corpus
- Custody Rights
- Illegitimate Child
- Judicial Discretion
- Mohammedan Law
