Court declines Muslim man's plea for custody of son

New Delhi: The Delhi High Court has rejected a Muslim man's petition for custody of his seven-year-old son from his former wife, who lives in Hyderabad.

The vacation judge bench of Justice Rajiv Sahai Endlaw and Justice G.P. Mittal said: "We are not inclined to issue notice even in view of the arguments made by the petitioner counsel citing apex court judgment. And especially when the child is in custody of the mother for the last over two years, it will not be allowed."

The bench also said: "Writ petition is accordingly dismissed with liberty to the petitioner to approach for a competent authority to adjudicate custody matters."

The court ruling came on a petition of habeas corpus filed by Shahid Khan, who was seeking production of his son from custody of his former wife Anjum Pasha and her brother and mother.

"The mother has no right to the custody of the minor and the petitioner being entitled in law to custody is entitled to enforce the said right through this petition for habeas corpus," said Khan in petition.

The court rejected Khan's plea. However, it enquired from the petitioner's counsel as to how this petition was maintainable since a habeas corpus petition cannot be a substitute for a proceeding seeking guardianship of the minor child.

"We are unable to agree and are unwilling to entertain this habeas corpus petition to adjudicate competing claims of the petitioner as father and respondent as mother to the custody of the minor son and which adjudication shall necessarily entail questions of suitability and best interest of minor," said the bench in its order given on June 15.

Citing an example from the Supreme Court in Gohar Begum (supra) case which dealt with a case where the respondent had no legal right to custody, the bench said: "Such is not the position here".  

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