1. This is an application under Section 491 of the Criminal Procedure Code, corresponding in effect with a writ of Habeas Corpus, brought by Zarabibi, the mother of the two minor children, against their father Abdul Razzak.
2. The rule was issued on a petition under Section 491. The words of that section are ' any of the High Courts of Judicature...may, whenever it thinks fit, direct that a person, illegally or improperly detained in public or private custody, be set at liberty or that any person within the limits &c.; be brought before the Court to be dealt with according to law.' There the guiding words of that section apparently come to an end but it is supplemented, I think, perhaps not altogether felicitously, by Rule 794 of the High Court Rules, which, being made under the Civil Procedure Code, have likewise the force of law. And while it appears by Section 491 to be left entirely to the discretion of the Court, whether it should or should not direct the person to be brought before it to be dealt with according to law, where the person has so been bought before it, Rule 794 appears to deprive the Court of all further discretion and commands that in the absence of cause being shown against the rule, which of course is a very different thing from allowing the Court to exercise its discretion, even where technically the cause is inadequate, the Court shall pass an order that the person or persons improperly detained shall be delivered to the person entitled to their custody. A comparison of Rule 794 with Section 491 seems to me to occasion more than one rather senior difficulty. The words which I have jus;; read from Rule 794 set Jo be strictly speaking applicable only to Clause () of Section 491, although in the present case they are sought to be applied to Clause (a). Now while Clause (a) does appear to require amplification, Clause (b)of Section 491 seems to require none, because as it stands, the Court already has an indication of the order which it is expected to pass, whereas, as I have pointed out, Clause (a) leaves the Court at the stage of having the person brought before it to be dealt with according to law, and 'to be dealt with according to law' is a phrase of such wide and general meaning that it is fairly open to many constructions.
3. I confess the points, which have been raised in the argument of this Rule, have occasioned me very great anxiety, not because of their intrinsic difficulty so much as because of the fact that the well-being of the two small minor children must necessarily much depend upon the order which I shall have to make. This is indeed a very unfortunate squabble between the husband and the wife. The more important facts are that indisputably the husband has been living apart from his wife, although in his affidavit he denies desertion, and that he has been living so quite apart from her for a great many years. In her affidavit the wife declares that these children had never even seen their father, meaning that he had deserted her so long ago that if the eldest child had already been born, he was not of an age to recognize or know his father. On the 17th of July of the present year, that is less than two months ago, the father met these children out walking and according to the mother forcibly carried them off. According to himself they ran to him, entered his carriage and went with him of their own accord. Since then they have remained in the father's custody and the mother seeks an order of the Court under a writ of Habeas Corpus, directing the restoration of the children to her. The children have been produced in obedience to the order of the Court and they present every appearance of well being. They are neatly dressed, apparently excellently fed, and look well and happy. They are very young and although the expression of their own wishes carries very little weight, (they naturally incline favourably to the person who last treated them with perhaps more than common kindness) it is not altogether surprising when the Court asked them whether they wished to return to their father or their mother, they both said that they desired to return to their father. If I was(sic) perfectly certain that the same kind treatment and careful te(sic) would be given them in the future, I should be even more disposed than I have been throughout this argument, to give less than full effect to what seems to me to be a too narrowly expressed rule of law. But it is of course barely possible that the father, knowing that the mother contemplated obtaining a writ of Habeas Corpus against him, may have been particularly careful in seeing that the children, when they came to Court, created a favourable impression. However that may be, merely upon the general merits of the case, apart from the law involved in it, we have these little boys both under seven years of age, for, I think, that the opponent, having regard to the date he gives of the marriage, cannot seriously contend that the eldest boy is yet quite seven years, of age, I say these two little children having lived the whole of their lives with their mother up to the 17th of July last and for about a month and a half only with their father, much of the credit then for their happy and well tended appearance should at any rate, I think, be given to the mother, for it is quite impossible that if they had not been fairly well looked after they could have been so much improved in so short a time. On the other hand, it is strenuously contended for the opponent that if not wealthy, he is in much easier circumstances than the mother and that if the Court looks only at the welfare of the minors, it certainly would not take them from him nor restore them to her. For, it is said, she is living with her own father and mother who are virtually paupers and that whatever means the family have existed upon for the last seven or eight years, have been drawn from the opponent the father.
4. Now, were we in the same position as the English Courts are under writs of Habeas Corpus under Section 491, I should have had I think very little difficulty in acceding to the argument of Mr. Jinnah for the opponent, an argument which has all along had my complete sympathy. But I have felt throughout a very great difficulty arising out of the actual words of Section 491 read with Rule 794. I pointed out at the commencement v. of the argument that the underlying principle of every, writ of Habeas Corpus (and proceedings under Section 491 have substantially the same character) is to ensure the protection and well-being of the person brought before the Court under that writ. But petitions under Section 491 are, I am afraid, too often made the pretext of settling disputes between other persons who are at variance as to their legal rights of guardianship. And the words 'to be dealt with according to law' in Clause (a) of Section 491 might(sic)sibly, as Mr. Jinnah suggests and I think might not unreasonably, be extended so as to take in what ordinarily happens when the parties have recourse to the Courts under the Guardians and Wards Act instead of under this section. There no doubt the policy of the Courts has always been not so much to be nice in defining the legal rights of the disputing parties as to put prominently before it the welfare of the minors as the paramount and determining consideration. A fortiori, on principle, the real interest and well-being of a person brought up on a writ of Habeas Corpus ought to be not only the determining but I think the sole consideration. And as to Clause (b which the petitioner has invoked, the words of that clause are such that she could obtain no real relief under it, for even assuming that these minors are illegally detained, then the section itself provides that the remedy which the Court gives, goes no further than setting these minors at liberty. Presumably, therefore we must turn to Rule 794 to see what is to be done under Clause (a) and, as I have said, the words of that Rule are mandatory and imperative, there is this difficulty, which the ingenuity of counsel for the opponent may well fix upon, that Rule 794 deals merely with cases of those persons improperly detained, whereas Clause (a) of Section 491 does not deal specifically with any such persons at all. Nor does the Rule 794 contain the words 'illegally detained' and it is only upon the bare technicality of the Mahomedan Law that the petitioner in this case relies, because if we were restricted by so wide a word as 'improperly' only, it would be very hard I think to persuade the Court that a father, who was treating his children well and kindly, was detaining them improperly.
5. However, on the question of law, namely, who is entitled to the custody of these minor children, I think only one answer is possible. All the authorities to which my attention has been drawn, appear to me unanimous on this point. During the subsistence of marriage, the mother is by common consent entitled to the guardianship or custody of male children up to the age of seven and that right survives even separation or divorce. It was Strongly argued on behalf of the opponent that in this case there had been no divorce and no separation in the legal sense, so that there was no ground upon which the petitioner could take the guardianship of the children in preference to the opponent. But even assuming that were so, it would merely throw the parties back upon the first unanimously accepted proposition of Mahomedan Law that during the subsistance and continuance of the marriage, the woman was still thermal guardian.
6. So that in that aspect of the case I think there is no escape whatever from the conclusion which Mr. Mirza has very forcibly pressed upon the Court. Mr. Jinnah arguing upon general considerations, with all of which I have been and am still strongly disposed to agree, has asked the Court not to sanction the capricious and unwifely conduct of the petitioner in withdrawing herself from her husband's home and society and then insisting on adding to that injury done him, the further injury of withholding his children from him. And it has been pointed out that in his affidavit the opponent expresses himself ready and willing to take the petitioner back into his house. Hoping that this might be found an amicable and easy solution, I called the petitioner Zarabibi and asked her whether she was willing to return to her husband. She, however, is evidently absolutely averse from doing so; and I dare say the truth is, as Mr. Jinnah says, she has been instigated in this spirit of opposition by her own father and mother. However that may be, without going into a great deal of evidence, which cannot be taken on a rule of this kind, I can form no judgment that would be of the least value of what has really gone on between the husband and the wife, that is to say, I can form no estimate of the truth of the allegations and counter-allegations made by the petitioner and the opponent.
8. The petitioner's case is that she has been treated consistently with great cruelty and she even goes so far as to say that her life would be in danger, and this is flatly denied by the opponent and on which side the truth lies I am unable to say. However that may be, there is this consideration at any rate that the woman has had these children with her all their lives and that I think her version of the manner in which they were taken from her is more probably true than the opponent's version, for I find it very hard to believe that these children could possibly have recognized him, as he says they did, and gone to him of their own accord. I pointed out in the course of the argument that the manner in which he became possessed of them really has very little bearing, if any, upon the somewhat difficult questions I have to decide. But it certainly is and will be thought doubtless a great hardship that the mother should be thus unexpectedly deprived of both of her children whom she has brought up apparently carefully and kindly, and(sic) if I now restore both of them to the mother, the fath(sic) any rate will know that, in a very few months in the case of the eldest and in a very few years in the case of the youngest, he would be entitled in his turn to have charge of them.
9. Now, taking the section and the rule in their ordinary and apparent sense, the question I have to answer seemingly is, whether the father or the mother is in law entitled to the custody of these children, and although I cannot shut my eyes to what is always a matter of very great importance and necessity before giving effect to the naked law of the case namely, the welfare of the minors, it still appears that the answer to that legal question is plain, and is not necessarily negatived by other considerations, that is to say, while I do think that the opponent must have treated these children very well and very kindly during the short time they have been with him, I am not in a position to say that the mother has not treated them with at least equal kindness and affection during all the years of their infancy and up bringing and it seems to me that it would be a very real hardship now to allow the opponent to take them away from her so shortly before in the ordinary course and by the aid of law he would have a right to do so. After all general fairness seems to be on the side of the policy of the Mahomedan Law that the mother who has had all the care and anxiety of bringing up her infant children should at least have the satisfaction of retaining them under her control until they are seven years of age and the only sufficient reason against so obvious a rule of fairness would be that if by allowing them to remain with their mother, the interests and the welfare of the minors would likely be seriously jeopardized. In view of the very short time that must elapse before the eldest son may reach the age of seven and so pass under his father's care, I do not think there can be any risk of the kind, and as to the younger the time no doubt is longer but it may be hoped that before those years pass away, better relations would be established between the husband and wife and perhaps there will be no need for further proceedings.
10. I think I must have made it plain with what anxiety and care I have considered both sides of this case and what serious difficulty it has occasioned me. I think, however, that for the reasons I have given, and notwithstanding the very powerful arguments which have been brought against the conclusion I have arrived at, arguments with so many of which I sympathised at the time and do still, I ought to come to that conclusion and make this rule absolute, directing that the minor children be restored to the legal guardianship of their mother.
11. Parties to bear their own costs.