1. This is an application which has been made to this Court under Section 491, Criminal P.C., by Mt. Haidari Begum who was married to the opposite party Saiyed Jawad AH Shah known as the Mian Sahab of Gorakhpur. The application is that the minor son aged 4 years of the parties should be brought before this Court and be delivered to the applicant. It is stated that on 29th July 1933, the applicant left Gorakhpur to go to the house of her father in Lucknow and she expected her husband to follow with the child, but her husband did not come or send the child, and on the 2nd August, she received a letter from her husband divorcing her. Her husband has kept the child. She has therefore made this application as under the Mahomedan law the mother is entitled to the guardianship of a child under 7 years of age. Now, the first question which arises is whether this Court should exercise its discretionary power under Section 491 in this matter. The discretionary power is given by the following words : 'Any High Court may, wherever it thinks fit, direct.' In the present case it appears to me that there is another form of procedure which may be adopted by the applicant under the Guardian and Wards Act, and the question is which of these forms of procedure should be adopted in the present case. I will briefly refer to the sections of the Guardians and Wards Act, 8 of 1890, which apply. Under Section 7 the Court may appoint a guardian for a minor. The Court is not tied down to select as guardian the natural guardian under the personal law of the minor; that is, the Court in the present case is not bound down to appoint the mother as guardian. The criterion in Section 7 is:
Where the Court is satisfied that it is for the welfare of a minor that an order should be made.
2. Under Section 12(1) the Court may direct that the person having the custody of the minor shall produce him. It is therefore open to the Court of the District Judge of Gorakhpur to entertain an application under Section 12 for the production of this minor. Under Section 45(1)(a) if the person having the custody of a minor objects to produce him or cause him to be produced in compliance with a direction under Section 12(1) such person in liable to a fine not exceeding Rs. 100, etc., and to detention in civil jail until he undertakes to produce the minor or cause him to be produced. The District Court therefore can enforce its order for production of the minor by detention in the civil jail. There is no doubt therefore that under the Guardians and Wards Act, the District Court has ample powers to compel the production of a minor from the custody of any person. Now, the following considerations arise in regard to the two methods of procedure which are open to the applicant in this case:
(1) The power under Section 491, Criminal P.C., is a general power of the nature of a Habeas Corpus. The power under the Guardian and Wards Act, is a power under a Special Act, dealing with a special subject, that is, the subject of minors. I consider that where there is a Special Act dealing with a special subject resort should be had to that Act instead of to a general provision. In the present case it is more desirable that the matter should be heard under the Special Act because there are provisions in the Special Act such as Section 7 which indicated to the Court how it should procee, whereas in the general provision in Section 491, Criminal P.C., there are no special provisions to indicate to the Court as to how it should proceed in the case of a minor. No doubt Sub-section (1)(a) states that the person when produced should be dealt with according to law, and therefore the Court may refer to the Guardians and Wards Act, as indicating the law on the subject, but it appears to me that it is more convenient that the case should be considered under the Guardians and Wards Act.
(2) The next point is that under the Guardians and Wards Act, the inquiry could be made at Gorakhpur where the husband and the child are residing, and where the applicant has been residing up till lately, as it is stated that she left Gorakhpur on 29th July 1933. Learned Counsel informs me that as far as he has been able to ascertain there are no rules for procedure framed as yet under Section 491(2). It will therefore be difficult, if there is an inquiry under Section 491(2), to know under what rules that inquiry should proceed as, no special rules have yet been framed. The suggestion is that the procedure should be by affidavit on each side. I do not consider that procedure by affidavit is at all as satisfactory as procedure by the examination of witnesses who are produced in Court and subjected to cross-examination. The Court cannot however make an inquiry by the hearing of witnesses under Section 491, Criminal P.C., and if it did a great deal of time would be taken up and it would be inconvenient for the witnesses to make the long journey of 200 miles from Gorakhpur to this Court.
(3) The third point which occurs to me is that it is a general rule of procedure that where Courts of different rank have jurisdiction then an application should be made in the lowest Court which has jurisdiction. Accordingly the application would be more properly made in the District Court at Gorakhpur. I may instance for example the case of criminal revisions where in numerous rulings this Court has laid down that an application in revision should be directed in the first instance to the Sessions Judge, although in that case the Sessions Judge himself cannot dispose of the matter, but can only forward it to this Court. Another example would be in the case of further inquiry into a criminal complaint which has been dismissed. No doubt it would be open to this Court-to direct such a further inquiry, but there is also no doubt that if an application were made to this Court and the fact was that no such application had been made to the District Magistrate or to the Sessions Judge, then this Court would direct that the application should be made to one of those Courts.
(4) The next point is whether the proceedings in the present case ought to be criminal or civil. Learned Counsel referred to a ruling reported in Zara Bibi v. Abdul Razzak (1910) 12 Bom. L.R. 891. In that case, which was heard in the year 1910 by a Single Judge, the question of taking action under the Guardians and Wards Act was not mentioned. The case however appears to have been different because the allegation was on behalf of the wife that her husband had attacked the person in charge of their two boys and had forcibly taken those two boys away. In the present case there is no such allegation of force as the suggestion is that the wife left her home at Gorakhpur and the child remained there. Learned Counsel suggested that there was an element of fraud because the husband had undertaken to follow her with the boy. But that is a matter for subsequent inquiry. In the present case the husband is admittedly a religious leader of the Muslim community in Gorakhpur known as the Mian Saheb and is so described in the heading of the application. It does not appear desirable that religious leaders should be brought into the criminal Courts where the matter can be disposed of by the Civil Courts.
(5) The next point is that an order by the High Court under Section 491, Criminal P.C., would not bar a party from making an application to the District Judge under the Guardian and Wards Act. The proceedings in this Court therefore would not be final and it is not desirable that this Court should take proceedings which are not final unless there is such urgency in the matter that a remedy does not exist otherwise. As I pointed out in the present case a remedy can be obtained just as soon from the District Judge under the Guardians and Wards Act, as from this Court. There is no advantage therefore from the point of view of urgency in applying to this Court.
(6) The real issue which has to be decided is, who is to have charge of this child? Whether this question is decided by this Court under Section 491, Criminal P.C., or decided by this Court on an appeal from the order of the District Judge appointing a guardian under the Guardians and Wards Act, is the matter to be considered. In the procedure under Section 491, Criminal P.C., this Court will have to decide merely on affidavits, but on an appeal from the District Judge this Court will have before it the record of the evidence of witnesses on either side who-have been subjected to cross-examination. In such an appeal this Court will have very much more material and better material to enable it to form an opinion on the matter. Procedure by affidavit is only suited for interlocutory matters in which only a temporary decision is to be given. Where there is to be a decision of a permanent nature such as the permanent custody of this child, I am of opinion that procedure by affidavit is eminently unsuitable. Consequently it is much better that the procedure should be under the Guardians and Wards Act, and that after a full inquiry the matter should come to this Court. That procedure will be final procedure and the disadvantage of two proceedings, one criminal and one civil, will be avoided.
(7) I find that the rulings on which learned Counsel for applicant relies, reported in Zara Bibi v. Abdul Razzak (1910) 12 Bom. L.R. 891, refers not to Section 491, Criminal P.C., but to certain rules made by the Bombay High Court under that section. On p. 894 the learned Judge stated: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 brought 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.
3. On p. 895 the Court observed:
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 great 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.
4. These questions show that the Court acted because it felt itself constrained to act by virtue of the Rule 794 of the Bombay High Court Rules, and that if it had had a discretion in the matter the Court would not have acted under Section 491, Criminal P.C. In the present case there are no rules framed by this Court under Section 491, Criminal P.C., Clause (2), and therefore the discretion of this Court under Section 491, Criminal P.C., is not fettered. The ruling therefore is no authority for the proposition that the Bombay High Court would have acted under Section 491, Criminal P.C., in the present case. For all these reasons I consider that this Court ought not to exercise its powers under Section 491, Criminal P.C., and I leave the applicant to apply for her remedy to the District Judge of Gorakhpur. I therefore refuse to take action on this application.
5. Learned Counsel applies for permission to file a Letters Patent Appeal under Section 10, Letters Patent, and at the same time he informs me that he considers that such permission is not necessary for him to file an appeal. All that I can say in this matter is that in Letters Patent, Section 10 of this Court it is laid down that a Letters Patent Appeal does not lie from an order passed in the exercise of criminal jurisdiction of one Judge. Accordingly I consider that I cannot grant permission for a Letters Patent Appeal.
(N. B. - For Letters Patent Appeal under Clause 10 and for the application under Clause 12, Letters Patent, for the guardianship of the minor child : see A I R 1934 All 606 and 722 (2), respectively, Ed.).