QAYAS AHMAD V STATE OF UTTAR PRADESH:

His child or her child? Your Child

Case Analysis –

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.

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.
  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 Hussain6, 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

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.
 Kapoor v. Virendra Kapoor7, 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 case16 the court granted the custody of child to the single woman.
Similar stance was affirmed in Mumtaz Begum Case17

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.
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 extrajudicial18 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. Umadevi19 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
bodies20, 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

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.