1. This is an application under Section 491 of the Criminal Procedure Code.
2. The petitioner alleges that his son aged 9 & a daughter aged 7 years have been illegally detained by the opponents. A notice was served on the opponents and in reply opponent No. 1, Sultan Hamid Khan appeared through Pleader to show cause against the rule. His case is that the petitioner was married to Naiyar Jehan Begum but after her death on 16.12.1943 the petitioner did not take care of the children and that he had another wife from whom he had children as well; that after the death of the mother the children were looked after by the mother's mother who died on 6.3.1949. During her life-time she (the mother's mother), made a petition to the Administrator and Chief Minister, Jaora State in March 1948 in which she expressed her desire that after her death the children should be looked after by the Government of Jaora & their property should also be in trust with the State. The Chief Minister accepted the trust and ordered that the property should be taken over by the State and that:
so long as the lady is alive the two children will remain with her and will be looked after by her. After her death the Government will have to make some arrangement for looking after them and for that purpose the applicant lady has authorised the Government to make use of the minors' property.
These facts are not denied prima facie by the opponent's learned Counsel in his application dated 20.6.1949, wherein a prayer is made for joining the Government as a party.
3. The main question therefore is whether in the apparent circumstances of the case action under Section 491 of the Criminal Procedure Code would be proper, it may be conceded that where a minor is illegally & improperly detained this Court would interfere by way of Habeas Corpus but it has also to be borne in mind that the interest of the minors must be a paramount consideration and where a remedy under the Guardians and Wards Act is more suitable the High Court should not use these powers under Section 491 of the Code of Criminal Procedure. I am fortified in this view by the decisions reported in Sultan Singh v. Maya Ram 52 All 491 and Moidin v. Kunha Devi AIR (16) 1929 Mad 33. It would be a rule of procedure that where an inquiry is necessary to ascertain what would be beneficial in the interest of the minors the local forum will be best suited for making such inquiry; and in a case like the present one I consider that an inquiry is necessary and action under the Guardians and Wards Act will be more appropriate.
4. I discharge the rule but since there is no appearance today on behalf of the opponents and the decision is not on merits I make no orders as to costs.