Mohd. Hamid Hussain, J.
1. This Habeas Corpus petition is by Smt. Imtiaz Bano claiming custody of her two infant sons from Masood Ahmad Jafri and his parents Shafiq Ahmad and Smt. Balun.
2. The admitted facts are that the contesting parties are Mohammedans governed by the Hanafi Law. Petitioner Smt. Imtiaz Bano was married to Masood Ahmad Jafri, respondent No. 1, on 14th July 1967 and out of this wedlock three sons were born to them. The youngest son died, but the other two sons, namely, Tariq Shafiq and Tahir Shafiq born on 1-12-73 and 21-12-75, respectively, are alive and at the time of the filing of this petition they were aged about 5 and 3 years, respectively. The relations between the husband Masood Ahmad Jafri and his wife Smt. Imtiaz Bano got strained and the petitioner Smt. Imtiaz Bano has been divorced by Masood Ahmad Jafri, respondent No. 1 who has taken a second wife. The assertion of the second marriage by Masood Ahmad Jafri as contained in para 17 of the affidavit of Smt. Imtiaz Bano has not been specifically denied by Masood Ahmad Jafri in his counter-affidavit, and in para 16 of the counter-affidavit a vain effort has been made to deny specifically the fact of second marriage. However, Sri M. A. Qadeer, learned counsel for Masood Ahmad Jafri respondent on a specific query by the Court has made a statement in Court during the course of his arguments that Masood Ahmad Jafri has in fact married another woman. This specific denial or admission of second marriage was essential in order to determine the question of entrusting the custody of the two infant sons in the anxiety of the Court to guard their welfare.
3. Allegations and counter-allegations have been made by the contesting parties as regards the ill-treatment meted out to each other. However, this question of ill-treatment and strained relations between the petitioner and her former husband Masood Ahmad Jafri is not relevant for the decision of this habeas corpus petition.
4. Only two questions arise in this petition. The first is the preliminary objection raised by Sri M. A, Qadeer, learned counsel for respondent No. 1, that this habeas corpus petition is not maintainable and the remedy for the petitioner lies under the Guardian and Wards Act. The second question for consideration is as to whether Smt. Imtiaz Bano petitioner or the respondent Masood Ahmad Jafri is entitled to the custody of their two infant sons in the best interest of their welfare in the circumstances of this case. Needless to say, that if the preliminary objection of the non-maintainability of the present habeas corpus petition prevails then there would be no need for going into the merits of the second question.
5. Sri M. A. Qadeer, learned counsel, in support of his preliminary objection about the non-maintainability of the present habeas corpus petition has relied upon Sub-clause (3) of Article 226 of the Constitution of India as amended by the 42nd Amendment Act of 1'976. Sub-clause (3) of Article 226 as amended is as under:--
'No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.'
According to Sri M. A. Qadeer, learned counsel, remedy under the provisions of Guardian and Wards Act is available to the petitioner who had not exhausted the same and therefore she is not entitled to claim the custody of her two infant sons by this habeas corpus petition in view of the bar of Sub-clause (3) of Article 226 of the Constitution. On a cursory reading of Article 226, Sub-clause (3), the preliminary objection of the learned counsel appears prima facie correct, but on a second thought over the emphasis on the words used in Sub-clause (3) 'if any other remedy for such redress is provided,' it is obvious that in the circumstances of this particular case this objection of the learned counsel cannot prevail.
6. In the instant case the contesting parties are governed by the Hanafi Mohammedan Law and the mother is entitled to the custody (Hizanat) of her infant sons up to the age of seven years, and this right of the mother continues even if she is divorced by the father of the child and is lost only if she marries a second husband. In the instant case the dates of birth of the two infant sons Tariq Shafiq and Tahir Shafiq are 1-12-73 and 21-12-75, respectively. On 1-12-1980 Tariq Shafiq will complete his 7 years age, and on 21-12-1982 Tahir Shafiq will complete his, 7 years age. This habeas corpus petition was filed on 6-6-1978 when notice was issued to the opposite parties. If proceedings under the provisions of the Guardian and Wards Act are initiated by the petitioner for the custody of her two infant sons these proceedings and the appeal there under will take long time to finally decide the immediate issue of custody. It is common knowledge that such proceedings are prolonged by the interested party on one pretext or the other. Therefore, by the time the petitioner succeeds in the proceedings under the Guardian and Wards Act Tariq Shafiq may attain the age of 7 years and the claim of the petitioner to the custody of Tariq Shafiq will be lost by that time. More or less similar would be the position with regard to the second son Tahir Shafiq. Therefore, the remedy under the Guardian and Wards Act for the petitioner cannot be said to be an adequate remedy, nor can it be said to be an efficacious remedy. Further, the immediate welfare of the two infant sons is of urgent concern of this Court in the particular circumstances of this case, namely, that respondent Masood Ahmad Jafri has taken a second wife in marriage and that the two infant sons are being kept by the respondent No. 1 with his parents Shafiq Ahmad and Smt. Balun who presently have no locus standi in the lifetime of the parents of the two infant sons. Further, the treatment of step-mother is notorious, so much so that often aggrieved people when expressing their resentment to an authority use the phrase that 'step motherly treatment is being meted out to them.'
7. Sub-clause (3) of Article 226 only bars a habeas corpus petition 'if any other remedy for such redress is provided for by or under any other law for the time being in force.' The words 'such redress' in Sub-clause (3) have been used with some wisdom by the Constitution makers, that is, if for 'such redress' an adequate or efficacious remedy is available then the aggrieved person cannot take recourse to Article 226 of the Constitution.
8. In the instant case the injury complained of by the petitioner is that she has been deprived of the custody of her two infant sons aged about 5 years and 3 years to which she is presently entitled in law. Writ of Habeas Corpus is the only process by which the petitioner can get immediate custody of her two infant sons. By the time the mother succeeds in getting the custody of her two infant sons after a long-drawn litigation under the Guardian and Wards Act the mother's custody of the two infant sons would be about to end or would have ended. I am of the considered view that Sub-clause (3) of Article 226 only bars the filing of such petition for, redress of any injury where remedy for such redress as efficacious and adequate is otherwise available.
9. In my above view I am supported by two Full Bench decisions reported in AIR 1977 Andh Pra 250 and AIR 1977 Guj 113, and a Full Bench decision of our own High Court reported in 1978 All WC 189.
10. In the Full Bench case Government of India v. National Tobacco Co. of India Ltd., Calcutta (reported in AIR 1977 Andh Pra 250) it has been observed (at p. 264) :--
'The words 'any other remedy for such redress' are significant and meaningful and they clearly bring out the intention of the Parliament that only that other remedy which is truly and really capable of giving such redress as is postulated in Sub-clauses (b) and (c) would be a bar to the maintainability of the writ petition. Needless to say that in order to find out whether there is such a bar to the entertainment of a writ petition, the Court will have to examine the facts and circumstances of each case and the redressed that is sought and the nature of the other remedy that may be available under any other law for the time being in force. It is impossible and, undesirable to lay hard and fast rules in this behalf,'
11. In the Full Bench case A bad Cotton v. Union of India (reported in AIR 1977 Guj 113) it has been observed (at p. 123):--
'Formerly, by a self-limitation the discretion was exercised not to entertain writ petitions when alternative remedy existed but now when a constitutional fetter is created, the Court would have no jurisdiction if alternative remedy for such redress is provided for by or under any other law. This being a fetter on the jurisdiction of the Court will have to be strictly interpreted. Even though the words 'any other remedy' had been used, it is obvious that 'any other remedy' has to be for redress of the injury for which this writ jurisdiction is conferred and, therefore, it must be equally adequate or efficacious so that qualitatively and quantitatively the same relief would be given for redress of the injury to the petitioner. Therefore, the adequate efficacious remedy is always implicit if the remedy is to be for redressing the injury as effectively as could be done in the writ petition.'
12. A Full Bench of five Judges of this Court was posed a similar question with regard to the bar of Sub-clause (3) of Article 226 of the Constitution by a Division Bench of this Court in Writ Petn. No. 416 of 1977, Bijli Cotton Mills (Pvt.) Ltd., Hathras v. Estate Officer/Secretary, National Textile Corporation (U. P.) Ltd. (reported in 1977 All WC 191) (FB), and the Full Bench answered that the bar of Sub-clause (3) of Article 226 of the Constitution would operate in a writ petition if the alternative remedy contemplated was adequate and efficacious.
13. This view of the Full Bench was subsequently followed by a Division Bench off this Court in the case of Smt. Shanti Devi v. State of U. P. (reported in 1&78 All WC 189) and the Division Bench observed that:--
'In Bijli Cotton Mills (Pvt.) Ltd. Hathras v. Estate Officer/Secretary, National Textile Corporation (U. P.) Ltd. 1977 All WC 191, a Full Bench of this Court opined that a suit can be an alternative remedy within the meaning of Clause (3) of Article 226 of the Constitution provided it is effective and adequate. In the instant case, the petitioner, who lived in the house in question along with other members of the family, was dispossessed from it under an order which was grossly illegal. It is matter of common knowledge that a suit takes a long time before it is finally decided. It would, therefore, take the petitioner several years before she is able to regain the possession of the house in question by filing the suit. Under these circumstances we do not think that the alternative remedy by way of a suit could constitute an adequate and efficacious remedy.'
14. The Full Bench decisions in all the three cases cited above clearly support my view that in the instant case the petitioner if driven to have recourse to proceedings under the provisions of Guardian and Wards Act would not get such redress as to which she is presently entitled, and also that the immediate welfare of the children requires this matter of custody to be decided in this habeas corpus petition.
15. For the reasons given above the preliminary objection raised by Sri M. A. Qadeer, learned counsel, is rejected, and this habeas corpus petition is maintainable.
16. Coming to the merits of the case, there is not much to say. The Hanafi Mohammedan Law by which the contesting parties are governed entitles the petitioner as mother to the custody of her two infant sons who are below the age of seven years in preference to the claim of the father Masood Ahmad Jafri, respondent No. 1. Besides, the immediate welfare of the infants is of primary consideration. Both the infant sons Tariq Shafiq and Tahir Shafiq were produced before this Court by their father respondent No. 1 and this Court had the advantage of watching the two infant sons from close quarters for considerable time, The Court put some questions to the elder son Tariq Shafiq to ascertain if he was capable of giving any rational answer, but he did not understand simple questions put to him by the Court and remained quiet. There was no point in putting any question to the younger son Tahir Shafiq who had a blank innocent look. It is a misfortune for both these infant sons to be deprived of the affection and care of their own mother, the petitioner, and they are kept in the care of their grand parents. However affectionate the grand parents may be but they cannot bestow that extreme affection and warmth which spontaneously flows from the mother who gave birth to the children.
17. Another important circumstance in the instant case which disentitles the respondent to have the custody of the two infant sons is the fact that the respondent has re-married. Masood Ahmad Jafri had not the courage to deny the fact of this remarriage in clear and emphatic terms in his counter-affidavit. The fact of Masood Ahmad Jafri having remarried has been admitted by his counsel Sri M. A. Qadeer on the specific question put by this Court during the course of the arguments. Under the Mohamed-dan Law the petitioner is entitled to the custody of her two infant sons. Further, the welfare of these two infant sons lies in their being handed over to their mother in preference to their father Masood Ahmad Jafri who has re-married and hence cannot be reasonably expected to bestow now or in the years to come that affection and care which the two infant sons are bound to get from their mother.
18. Accordingly, Masood Ahmad Jafri, respondent No. 1, was directed to hand over the custody of his two infant sons Tariq Shafiq and Tahir Shafiq to their mother Smt. Imtiaz Bano petitioner who was present in Court and who has taken over the custody of her two infant sons with immediate effect.
19. It is also in the interest of the two infant sons that their father Masood Ahmad Jafri should have access to meet his infant sons to know their welfare and to bestow on them such affection as he may like to bestow. Sri Sayeed Ahmad Khan, learned counsel for Smt. Imtiaz Bano, has given on behalf of his client an undertaking to this Court that facility will be provided to the respondent Masood Ahmad Jafri occasionally to meet his sons Tariq Shafiq and Tahir Shafiq and the respondent will be shown normal courtesy during such visits. Smt. Imtiaz Bano with the two infant sons is normally expected to reside with her father in Lucknow so long as her father Maqbool Ahmad Hashmi who is a Government employee remains at Lucknow. Masood Ahmad Jafri may see his aforesaid two infant sons for an hour once a week at the residence of Smt. Imtiaz Bano. In the event of any difficulty in this regard the party concerned may apply to this Court for further clarification or direction.
20. In terms of the above this Habeas Corpus petition is allowed. Parties will bear their own costs.