This was explained in detail by Indian supreme court in the case of ‘Gohar Begam vs Suggi Alias Nazma Begam 1959.
Facts of the case
- A muslim woman ‘gohar begum’ (appellant) was brought up by her aunt kaniz begum (respondent).
- In 1951 the appellant met one Trivedi and since then she was been living continuously in his exclusive keeping.
- From Trivedi, three children were born.
- Trivedi took the appellant, her mother and the two younger children to a hill station near Bombay called Khandala and the party stayed there for three or four months.
- At the time the appellant had gone to Kandala, the respondent went to Pakistan on a temporary visa and she took the child Anjum with her presumably with the consent of the appellant.
- After the respondent returned from Pakistan with Anjum, the appellant who had then moved into the flat in Marine Drive, asked the respondent to send Anjum to her but the respondent refused to do so. Since then the respondent has been refusing to restore the custody of the child Anjum to the appellant.
Institution of the case by appellant
In these circumstances, the appellant made her application under s. 491 of the Code of Criminal Procedure (old code) on April 18, 1958. She stated that she apprehended that the respondent would remove Anjum to Pakistan any day and there was already a visa for Anjum available for that purpose.
Opposition by respondent
- The respondent opposed the application denying the correctness of some of the allegations made in the petition of the appellant. She denied that Trivedi was the father of the child Anjum and said that the father was a Shia Moslem called Samin Naqui.
- She denied that she had made the appellant live in the keeping of any person as alleged by the latter. She contended that she had intended that the appellant would marry and live a clean and respectable life but other influences operated upon her and she went to live with Trivedi as his mistress.
- She denied that she had prevented the appellant access to the child Anjum as the latter stated. She contended that she was looking after the child Anjum with great care and solicitude, and had put her in a good school and kept a special Aya for her. She also said that she was well off and had enough means to look after the child well.
- She contended that it was not in the interest of the child to live with the appellant because she was living in the keeping of a man who might turn her out and she would then have to seek the protection of another man.
- She said that she had no child of her own and was fond of Anjum whom she had been treating as her own child.
The court’s answer
The court noticed that Trivedi has sworn an affidavit acknowledging the paternity of the child and undertaking to bring her up properly as his own child. He is a man of sufficient means and the appellant has been for a considerable time living with him as his mistress.
The court noted that on these undisputed facts the position in law is perfectly clear. Under the Mohammedan law which applies to this case, the appellant is entitled to the custody of Anjum who is her illegitimate daughter, no matter who the father of Anjum is.
The court further made it clear that The respondent has no legal right whatsoever to the custody of the child. Her refusal to make over the child to the appellant therefore resulted in an illegal detention of the child within the meaning of s. 491. This position is clearly recognised in the English cases concerning writs of habeas corpus for the production of infants.
In The Queen v. Clarke Lord Campbell,, C. J., said at p. 193:
“But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty.”
The courts in our country have consistently taken the same view.
The court decided that the terms of s. 491 would clearly be applicable to the case and the appellant entitled to the order she asked.
Gohar Begam vs Suggi Alias Nazma Begam; 1960 AIR 93, 1960 SCR (1) 597
 1960 AIR 93, 1960 SCR (1) 597
 (1857) 7 E.L. & B.L. 186