Qayas Ahmad v State of U.P [1]
Provisions Involved
1. Article 226 Constitution of India.
2. 164 CrPC.
3. 7, 9, & 17, Guardians and Wards Act, 1890.

Brief facts –
1. The petitioner in the present case was married to a woman since 2001 and three children were born out of this wedlock. The petitioner’s brother and his wife eloped along with three children.
2. The wife of petitioner, when found, agreed to handover the custody of the children. This statement was recorded. But when the petitioner asked for the custody of children, she denied.
3. Compelled by the circumstances the petitioner preferred a writ petition at High Court of Judicature at Allahabad in the nature of mandamus, asking for custody of children.

Arguments/ Pleadings –
Petitioner –
· Education of children is being affected.
· The wife of petitioner is leading an immoral life and due to financial incapability she cannot educate them.
· The wife of petitioner, in her statement recorded u/s 164 CrPC,[2] agreed to handover the child.
· The petitioner has approached the highest court in land with bona-fide intention on the basis of a right that is vested in the petitioner and strict technicalities should not hamper the course of justice.

Respondent –
· The Additional Advocate General on behalf of the state contended that the petition is not maintainable for the said purpose. Writ of Mandamus cannot be issued in such cases.
· This was a family dispute and the outside the jurisdiction of this court.

Order –
In its final order the court, while disposing the petition, stated–
· In the interest of humanity and equity, the petitioner shall be allowed to meet his children twice in the month. The police authorities who shall ensure the compliance of court’s order.
· For grant of custody of children, the petitioner may apply to the court with requisite jurisdiction.
· The court stayed silent on the merits of validity of second marriage.

Custody Laws –

1. Hizanat – The custody and guardianship under the Muslim personal law is uncodified. mother has the right to custody of child though this right is not absolute.[3] If the mother is declared unfit or guilty of misconduct she can be deprived of this right. Thus, the benefit of child is prioritized under the law.[4] Hizanat is basically the power to make decisions regarding the minor, it is different from actual physical custody.[5]

In Mumtaz begum v. Mubarak Hussain[6], the High Court of Madhya Pradesh entertained a writ petition for the custody of child which was rejected by the lower court on technical grounds. The High Court not only entertained the petition but also granted the custody to mother. The court relied on a Supreme Court judgment in the case of veena Kapoor v. Virendra Kapoor[7], where a petition regarding the custody of child was entertained under Article 226 of the Constitution of India.
Thus it can be inferred that courts in India in such matters are extremely liberal, and technicalities do not stop the hands of justice.

2. Guardians and Wards Act, 1890 (GWA) – Application regarding custody shall be initiated in the district court.[8] On failure of natural guardian, the guardianship of child is governed by GWA.[9] The court shall consider the inter alia personal laws of the minor.[10] It is a general principle that the custody of the child should be with mother till the child attains the age of five.[11] However, father can apply for custody in appropriate court and in the meanwhile he shall be allowed to visit the mother on weekends and meet his children.[12]

Analysis –
There are two schools of thought to examine the order passed by the Hon’ble High Court, viz the liberal one and the orthodox or inflexible view, which sticks to the black letter of law. The author aims to describe them.

Writ petition in custody cases:

the purpose behind mandamus is that it lies to enforce a public duty imposed by law.[13] Mandamus lies to enforce a duty of public nature not to resolve a private dispute.[14] The applicant seeking a writ of mandamus must show that there exists a right to compel the performance of some duty cast on the opponent.[15]

However, there have been instances where higher courts have granted custody through a writ petition. There are a catena of judgments providing for custody under habeas corpus. For instance, in Gohar begum case[16] the court granted the custody of child to the single woman. Similar stance was affirmed in Mumtaz Begum Case[17]

There is no such duty imposed on the State of Uttar Pradesh to ensure the custody of children with their father, the dispute in question is prima facie a private dispute. Thus, a writ of mandamus cannot be granted in such cases. The Hon’ble High Court disposed the petition, but granted a extrajudicial[18] relief on humanitarian grounds and in the interests of equity. The father was allowed to meet the children on second and fourth Saturdays and the local police station was directed to ensure the compliance of such order. This is nothing but actually allowing the writ of mandamus while disposing it. It is similar to firing a bullet with silencer on the gun.

The liberal school of thought not only supports this interpretation of law rather appreciates it. In State of Karnatak v. Umadevi[19] the apex court laid down that the purpose of Article 226 of the Constitution of India is to make the High Courts as sentinels and guardians of equal rights. This protection of equal rights supports the order passed by the hon’ble court in the present case. On the other hand, the orthodox view would rather opt for dismissing the petition as it is prima facie a case of private dispute. However, higher courts have issued writs to private bodies[20], there are no instances of issuing writ to private individuals. In vicem it is a settled doctrine that no writ can be issued against individuals except when such an individual enjoys a special power or privilege under a statute.[21] No such right is vested in the father rather the Muslim personal law is inclined towards the mother at this point.[22]

Applying to the appropriate court:

the appropriate court for custody of child is a family court or a district court.[23] The hon’ble court while disposing the petition asked the petitioners to apply for custody in a court with requisite jurisdiction and under the appropriate law, viz Guardians and Wards Act, 1890. GWA while deciding the guardianship inter alia considers the personal laws of the child, if they are not in contravention of the act.[24]

End-Notes

1. Writ Petition No. 11795/2019 at High Court of Judicature at Allahabad, Lucknow Bench
2. 164 CrPC, 1973. The section lays down how, when and by whom the statements and confessions are to be recorded. A magistrate has the power to record any confession or statement made to him during the investigation or any time before the commencement of trial. A pre-requisite is that no such confession shall be recorded by a police officer on whom the power of a magistrate is conferred.
3. 35 At-Talaq 6
4. BAJPAI, ASHA. “Custody and Guardianship of Children in India.” Family Law Quarterly, vol. 39, no. 2, 2005, pp. 441–457, 445. JSTOR, www.jstor.org/stable/25740499.
5. Ibid at 443.
6. AIR 1986 MP 221.
7. AIR 1982 SC 792
8. 9, Guardians and Wards Act, 1890.
9. 7, Guardians and Wards Act, 1890.
10. 17, Guardians and Wards Act, 1890.
11. Manju Tiwari v. Rajinder Tiwari, AIR 1990 SC 1156.
12. Ibid.
13. “Mandamus.” The Yale Law Journal, vol. 19, no. 6, 1910, pp. 462–465, 462 JSTOR, www.jstor.org/stable/784887.
14. Jain, S. N. “BODIES TO WHICH MANDAMUS CAN BE ISSUED.” Journal of the Indian Law Institute, vol. 15, no. 1, 1973, pp. 109–115, 112 JSTOR, www.jstor.org/stable/43950186.
15. Oriental Bank of Commerce v. Sundar Lal Jain, (2008) 2 SCC 280.
16. Gohar Begum v. Suggi Alias, AIR 1963 SC 93.
17. Mumtaz Begum, supra note 6.
18. Anything which falls outside the ambit of valid regular legal proceedings is deemed as extrajudicial. In the present case the relief was extrajudicial as it was outside the legal rpoceedings.
19. State of Karnataka v. Umadevi, (2006) 4 SCC 1.
20. Vatsal gupta Through his father v. state of U.P, Misc. Single No. 4229 of 2015; Janet Jeyapaul v. SRM University, (2015) 16 SCC 530.
21. supra note 14 at 114-15.
22. supra note 3.
23. supra note 8.
24. supra note 4 at 444.