Introduction

The case centered on the legal entitlement to custody under Mohammedan law for an illegitimate child, challenging the High Court's decision regarding the application of Section 491 of the Code of Criminal Procedure, 1973 (CrPC).

Facts

• The appellant, an unmarried Sunni Muslim woman, had an illegitimate female child named Anjum.
• She applied to the Bombay High Court under Section 491 of the CrPC for custody of the child, but her application was denied.
• The respondent, Kaniz Begum, had taken custody of the appellant when she was young and raised her.
• However, the appellant had been living with a man named Trivedi since 1951, with whom she had three children, including Anjum.
• Trivedi acknowledged paternity and agreed to raise Anjum as his own.
• The respondent, who took Anjum to Pakistan temporarily, refused to return custody to the appellant upon her return.
• The High Court dismissed the appellant's application, citing controversial facts regarding paternity and living arrangements.

Issues Involved

• Whether the respondent had made the appellant live in the keeping of different persons?
• Whether respondent had prevented the appellant from having access to the to the child?

Observation

• The Supreme Court found the High Court's decision erroneous.
• It ruled that under Mohammedan law, the appellant had the right to custody of Anjum as her illegitimate child, regardless of paternity.
• Trivedi's acknowledgment of paternity further reinforced this right. The Court also noted that the appellant's profession as a singing girl, shared with the respondent, did not invalidate her claim to custody.
• The High Court's consideration of controversial facts was deemed irrelevant to the legal entitlement to custody.
• Moreover, the Court emphasized that the welfare of the child favored placement with the appellant, who was willing and capable of caring for her.
• It rejected the High Court's assertion that the child's interests were better served with the respondent, particularly since Trivedi had acknowledged paternity and agreed to provide for Anjum.
• Additionally, the Court clarified that the appellant had the right to seek custody under Section 491 of the CrPC, without being directed to pursue remedies under the Guardians and Wards Act, 1890.
• The High Court's failure to provide reasoning for its decision undermined the exercise of judicial discretion.

Conclusion

• Consequently, the Supreme Court set aside the High Court's judgment and directed the respondents (excluding the State of Bombay) to transfer custody of Anjum to the appellant.
  • It instructed the Registrar of the High Court to oversee the transfer of custody and return the child's passport to the appellant's advocate.
  • An injunction against removing Anjum from Greater Bombay remained in place until custody was transferred to the appellant.