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 relatives. The High Court had previously dismissed her application, suggesting that the matter should be taken to a civil court under the Guardian and Wards Act. The Supreme Court found that the High Court's decision was flawed, as the mother had a clear right to custody under Section 491 of the Code of Criminal Procedure, 1898, and that the welfare of the child was paramount. The court noted that the mother had been living with Trivedi, who acknowledged paternity, and that the respondent had no legal claim to the child. The Supreme Court set aside the High Court's order, directing the respondents to hand over custody of Anjum to the appellant, emphasizing that the existence of an alternative remedy did not negate the right to seek custody under Section 491. The court also ordered that the child be produced before the Registrar of the High Court for custody transfer. (Paras 1-2).
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 the child to her constitutes 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 hand over custody of the child Anjum to the appellant, emphasizing the mother's legal right under Section 491 and the welfare of the child.
Law Points
- Habeas Corpus
- Custody Rights
- Illegitimate Children
- Judicial Discretion
- Mohammedan Law
