' This habeas petition has been filed with the following prayer:-- "It is, therefore, most respectfully prayed that to avoid the imminent danger to the minor in question, intended to be smuggled to Russia, the S . H . 0 . /respondent No,2 may kindly be directed to immediately recover the minor namely Fatima Abbas from the illegal and improper custody of respondent No,2 and produce before this Hon'ble Court for deciding her future for the legal custody point of view, in the larger interest of justice."
2. The facts in brief are that Syed Aamir Abbas son of the petitioner contracted marriage with respondent No,2 and out of that wedlock Fatima Abbas aged about 9 years was born. The marriage was dissolved in the year 1992 and the minor remained with her mother respondent No,2.
Through this petition, the petitioner seeks the custody of the minor on the ground that respondent No,2 has entered into marriage with Ishtiaq Hussain. The said Ishtiaq lussa is not related to the minor girl i,e, granddaughter of the petitioner and he is reported to be a very ill- reputed person. It is further averred in the petition that Syed Aamir Abbas son of the petitioner also married with another woman and out of that wedlock he has three children and he is not paying any heed towards the maintenance of the petitioner or his minor daughter Fatima Abbas; under section 353 of Muhammadan Law the petitioner is entitled to the custody of the minor girl; that there is imminent danger that Ishtiaq Hussain the present husband of respondent No,2 wants to smuggle the minor to Russia.
3. I have heard learned counsel for the petitioner at some length. The admitted position as narrated in the habeas petition is that since her birth the minor Fatima Abbas is in custody of her mother Qudsia Jafri, respondent No,2. It is also admitted on record that son of the petitioner namely Syed Aamir Abbas father of minor Fatima Abbas has never provided any maintenance to the minor and from his second wife he has got theme children. The minor at present is nine years of age and she has not attained puberty and under section 353 of Muhammadan Law, father's mother is only entitled to the custody of minor when the mother loses the right of custody. Under section 354 of Muhammadan Law, the mother disentitled herself to the custody of a child if she marries a person not related to the child within the prohibited degrees... The allegations levelled against the mother in the present petition cannot be decided in a summary way. Admittedly the child is in custody of her mother and the petitioner-grandmother demanding the immediate custody of her said granddaughter. The question whether the mother properly maintained the daughter and after her marriage with a person who is not related with the minor within prohibited degree has lost her right of custody and also what was in the welfare of the minor, such fact and view thus, require thorough evidence to be recorded. This could be done before a Guardian Court.
4. The normal remedy for a person from whose custody the child has been removed is to make a petition under section 25 of the Guardians and Wards Act and to seek interim custody under section 12 of the same Act but as already stated in the instant case the minor is in the custody of her mother since the time of her birth and presently she is about nine years of age and there is no allegation that the minor has beer removed from the custody of the petitioner. In these circumstances the custody of the minor is neither illegal nor improper. Therefore, the provisions contained under section 491, Cr.P.C. Are not attracted to the facts and circumstances of the present case. As far as the apprehension of the petitioner about the removal of the minor from the country, suffice it to say that efficacious remedy is provided under section 12 of the Guardians and Wards Act and the Court is competent under that Act to order for the interim custody of the minor.
Controversial question of fact cannot be decided by this Court while exercising powers under section 491, Cr. P. C .
5. In view of the above discussion, the petitioner may seek her remedy before appropriate forum if so advised. This petition has no force and the same is dismissed in li mine .