M.M. Qazi, J.
1. The petitioner is wife of respondent No.1. They were married on 10-5-1979 at Bombay. The petitioner went to village Taloja, Taluka : Panvel, District : Raigad and started living with the respondent No.1. For few months, they lived happily but thereafter, the relations became strained. It is alleged that after about eight months, respondent No.1 started harassing the petitioner and some times even assaulted her at the instance of his parents. The petitioner gave birth to a female child on 11-12-1980 at Cama Hospital, Bombay, who was named as Yasmin. After the delivery, the petitioner stayed with her mother for about 4 to 5 months, and thereafter, she was taken to Taloja by the respondent No.1. According to the petitioner, on or about 17th April, 1981, her brother visited Taloja to invite her for a marriage in the family. At that time, the respondent No.1 did not allow the petitioner to accompany her brother and instead asked him to come to Taloja on or about 10th or 11th May, 1981 to take his sister to Bombay. Accordingly, the petitoner's brother came back to Bombay and again went to Taloja on 11th May, 1981 and requested the respondent No.1 to allow petitioner to accompany him to Bombay. It appears that respondent No.1 allowed the petitioner to accompany her brother with great reluctance. The petitioner came to Bombay along with her daughter Yasmin.
2. There is no dispute that on 7th of April, 1984, both the parties entered into a settlement known as Khullanama and finally parted with each other. It is not necessary to give the details of the settlement. However, it may be pointed out that according to the settlement, the respondent No.1 paid an amount of Rs. 5,000/- as Meher to the petitioner and the petitioner waived the remaining amount of her Meher. It also appears that the petitioner was paid an amount of Rs. 4,500/- as maintenance to the petitioner and her child till the date of divorce. It also appears that under the terms of Khullanama the daughter Yasmin was handed over to the respondent No.1 and on this condition alone he agreed to give Dahej Articles to the petitioner. According to the petitioner, it was agreed that respondent No.1 would make it possible for the petitioner to meet her daughter periodically. There is no dispute that the daughter Yasmin is in the custody of respondent No.1 ever since this arrangement was entered into on 7-4-1984. According to the petitioner, she could not meet her daughter ever since she was taken away by the respondent No.1. It is alleged that the respondent No.1 is not interested in the upkeep and the well being of the minor child. According to her it is not in the interest of the minor to remain in the custody of respondent No.1 She has asserted that under the Muslim Law, it is she who is entitled to the custody of the minor daughter till she attains puberty. It is under these circumstances, that she has filed this petition. The respondent No.1 filed his return by way of counter-affidavit. According to him, he is the natural guardian of the minor Yasmin and that he is lawfully in custody of the minor. According to him, he is having the custody of the minor child under the Khullanama and he has absolute right to continue to have the custody of the minor under the terms of Khullanama. According to him, the petitioner should file a regular suit under the provisions of the Guardian and Wards Act for the custody of the minor child. According to him, the petitioner is a mentally deranged woman and, therefore, it would not be in the interest of the child to hand over her custody to the petitioner. Petitioner has filed an additional affidavit on 27-9-1984. In this affidavit she has denied that she is mentally deranged woman. According to her, the respondent No.1 has made scandalous allegations against her and her family members and the same are baseless. According to her she was shocked to know that the respondent No.1 had already married once and that he divorced his first wife on flimsy grounds. This incident had made her nervous and she fell ill and was treated. She also came to know that he had developed illicit relations with one young girl from another community. The petitioner has placed one more affidavit dated 3-10-1984 on record. In this affidavit she has given the details as to how it would be in the best interest of the minor to remain with the petitioner. According to her, she is residing with her mother and brother in Bombay. Her brother is employed in a private firm as a Clerk and is also doing part-time teaching. His total monthly income is about Rs. 1,500/-. She has further stated that her mother has a shop of tin work at Dhanji Street, Bombay from where she gets monthly income of Rs. 1,000/-. She has further stated that she is doing tailoring work and earns Rs. 600/- to Rs. 700/- per month. According to her, respondent No.1 has no independent source of income and he is entirely depending on his father. She has further asserted that there are no good educational facilities at Taloja which is a small village whereas, there are best educational facilities at Bombay. Respondent No.1 has also filed another affidavit and denied the contents of the two affidavits filed by the petitioner referred to supra. This affidavit has been filed by the father of the respondent No.1. In this affidavit again, it is asserted that the petitioner is a mentally deranged woman and that her case is chronic one so much so that the psychiatrist under whose treatment she was kept had advised them to get her admitted in a nursing home.
3. In our view, the only question that really falls for determination is the welfare of the minor child. Shri Maniyar the learned Counsel appearing for the respondent No.1 has submitted that this Court has no jurisdiction to issue a writ of habeas Corpus in the facts and circumstances of the case. According to him, this is not a case where it can be said that the custody of the child with respondent No.1 is illegal. He has submitted that the petitioner herself handed over the minor child to the respondent No.1 under the terms of Khullanama and therefore, the respondent No.1 cannot be said to be in illegal custody of the minor child. According to Shri Maniyar, the petitioner must challenge the Deed of Khullanama by way of regular suit and establish her right to the custody of the minor.
4. It is true that it may not be possible for us to say that the custody of the minor with respondent No.1 is strictly illegal. But the question that is raised here is as to who is entitled for the custody of the minor. The defence which Shri Maniyar has raised on the point of maintainability of the petition is rather technical. In the present petition we are dealing with human problems and we would not allow the technicalities to defeat the ends of justice. The only consideration that should guide us is the welfare of the minor. It is the consistent view of this Court and that of the Supreme Court that in a case like this, the only consideration that should weigh is the welfare of the minor. The thrust of the argument of Shri Maniyar has been that the petitioner is mentally deranged woman and that the respondent No.1 had actually treated her for mental illness by taking her to a psychiatrist and therefore, it would not be in the best interest of the child to put her in the custody of the petitioner notwithstanding that she is mother. Even granting in favour of the respondent No.1 that the petitioner was taken to a psychiatrist and that she was treated by a psychiatrist for some time, that by itself in our view would not disqualify her from claiming the custody of the minor. The respondent No.1 will have to demonstrate that the petitioner is really mentally deranged woman and would not be in position to look after the interest of the minor child. Almost except the bald statement of the respondent No.1 there is nothing to show that the petitioner is a mentally deranged woman. She has frankly admitted in her affidavit that she was taken to a doctor though she did not know whether he was a general practitioner or a psychiatrist. According to her when she came to know that she was the second wife and her husband had already married and had divorced his first wife without any reason, she was shocked and therefore, she was taken to a doctor. In order to satisfy ourselves as to whether the petitioner is really mentally deranged woman, we interrogated her in presence of the Counsel and other relations. We put several questions to her in order to ascertain and satisfy ourselves as to whether she understands the nature of the proceedings she has initiated and as to how she would be able to protect the interest of the child. Shri Maniyar objected to our questioning the petitioner on the ground that this may be the period of her lucid interval. The objection was overruled by us. This case was being adjourned from time to time by us to enable the parties to compromise the matter out of Court. The petitioner was present on each date and, therefore, we had enough opportunity to observe her. We saw her sitting in the Court for hours together. We did not notice any abnormality in her at any time. During interrogation, we found her quite intelligent and a normal person. She gave intelligent answers to each and every question put to her. We even asked Shri Maniyar if he wanted to put any questions to her; but he declined. Shri Maniyar requested that we should direct the Magistrate to record the evidence so that he could get and opportunity to examine the experts to prove that she is mentally deranged woman. In our view, that would only protract the proceedings and would not be in the interest of the minor. The petitioner appears to be fully conscious of the responsibilities which she has to head as a mother in the event she gets the custody of the minor child. In this view of the matter, it would not be proper to send the case to the Magistrate for recording of the evidence.
5. About the legal position under Muslim Law, there can be no dispute that the mother is entitled to the custody of her male child until he has completed the age of seven years and her female child until she has attained puberty. We may here refer to para 352 at page 367 of the Mulla's Principles of Mahomedan Law, Eighteenth edition. Here we are not concerned as to who is the legal guardian. All that we are concerned is as to who is entitled to the custody of the minor. The Supreme Court in Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, : AIR1982SC792 has observed as follows :
'2. It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. The High Court, without adverting to this aspect of the matter, has dismissed the petition on the narrow ground that the custody of child with the respondent cannot be said to be illegal.'
In our view, the above observation fully covers the facts and circumstances of the present case. Shri Maniyar has strongly relied on the observations of the Supreme Court in para 3 of the said judgment. Para 3 reads thus :
'3. It is difficult for us in this habeas corpus petition to take evidence without which the question as to what is in the interest of the child cannot satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The learned District Judge may either take up the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh.'
Shri Maniyar has submitted that the Supreme Court found it difficult in the habeas corpus petition to take evidence in order to decide as to what would be in the best interest of the child. The Supreme Court, therefore, directed the District Judge to record the evidence. Relying on these observations, Shri Maniyar wanted us to direct the Magistrate to record evidence. In our view, there is enough material placed on record by way of affidavits and counter-affidavits and all the necessary details are before us to decide the question as to what would be in the best interest of the minor. From Para 3 of the judgment of the Supreme Court, which we have reproduced above, it cannot be said that in each and every case where the Court is dealing with the habeas corpus petition, the Court must necessarily send the case back for recording of the evidence. We have no doubt at all that in a given case, the case can be decided on the basis of affidavits alone if the material placed before the Court is sufficient. In our view the necessary facts have already been placed on record in the present case and we do not see any difficulty in deciding the question of the custody of the minor child. The main attack of Shri Maniyar is that the petitioner is mentally deranged woman. We have already discussed that aspect in detail. According to us, this a reckless defence. In support of this defence, Shri Maniyar has shown us certain prescriptions from psychiatrist prescribing certain medicines for the petitioner. That prescription does not show the ailment the petitioner was supposed to be suffering from. It is difficult to place any reliance on the affidavit of the respondent No.1 that the petitioner is a mental patient.
6. It has already come on record that the respondent No.1 had married once and divorced his first wife within a year. According to Shri Maniyar his client divorced his first wife because he did not get any issue from her. He married the petitioner but was not satisfied with her as well and therefore, a settlement was entered into by way of Khullanama and the marriage came to an end. The likelihood of his going in for the third marriage cannot be overruled. The another aspect which according to us is equally important is the educational facilities. It has been asserted by the petitioner that she has already secured admission for Yasmin in a Nursery School near her house in April 1984. According to her, there is a primary Urdu school situated in the next lane and the Urdu Girls School is also very near about her residence. Besides number of colleges in Byculla which is not far away from her residence. There can be no dispute that Taloja is a small village and educational facilities cannot be compared with Bombay where the petitioner is residing. Thus, in our view this would also be an important consideration which should weigh in favour of the petitioner. She has already given the details of her income and we are satisfied that the interest of the minor would be best protected if she is allowed to remain with the petitioner. The petitioner is not employed any where and she can give maximum love and affection to her minor child. Yasmin is the only child to her and she can exclusively devote herself. Apart from legal position which is incidentally in her favour, there can be no substitute for mother's love and affection. She has not gone in for second marriage. She is all alone, living with her mother and brother and appears to be anxious to have the custody of the minor. We are fully satisfied that it would be in the best interest of Yasmin that she should be handed over to the petitioner till she attains the age of puberty.
7. The petition is allowed and we direct that Yasmin be handed over to the petitioner. The father of the respondent No.1 is present in the Court with the minor child. The custody of the child has already been handed over to the petitioner in our presence. Although we are giving the custody of the child to the mother, at the same time, the first respondent father must also have occasion when he can keep the child with him for some period as per the arrangement set out here in after :
(i) The respondent No. 1 shall be at liberty to take 'Yasmin' at his residence during first half of every vacation. The respondent No.1 shall return the child at the petitioner's residence after the expiry of the said period;
(ii) In addition to the above arrangement, the respondent No.1 shall be at liberty to take the child at his residence every month for two days preferably on Saturday and Sunday or on any day when the school is closed. The respondent No.1 shall return the child at the place of the petitioner after two days. Liberty to both the parties to move the Court. Rule is made absolute in terms of prayer CI. 'B'.