ION Criminal Appeal No 11 of 1959
Appeal by special leave from the judgment and order dated April 301958 of the Bombay High Court in Criminal Application No 508 of 1958
K M Desai and 1
N Shroff for the appellant
Ganpat Rai for respondents Nos 1 to 4 and 6
KL Hathi and B H Dhebar for respondent No 5 76 598 1959
August 27
The Judgment of the Court was delivered by SARKAR J
The appellant is an unmarried Sunni Moslem woman
She has an infant female illegitimate child called Anjum
The appellant made an application to the High Court at Bombay under section 491 of the Code of Criminal Procedure for the recovery of the custody of the child from the respondents
That the application was refused
Hence this appeal
The appellant s case is as follows She is the daughter of one Panna Bai
The respondent Kaniz Begum is Panna Bai s sister
Kaniz Begum whom it will be convenient to refer as the respondent took the appellant over from Panna Bai and brought her up
Prior to 1951 the respondent had put her in the keeping of two persons and had thereby made pecuniary gain for herself
In 1951 the appellant met one Trivedi and since then she was been living continuously in his exclusive keeping
The appellant stayed with Trivedi at Jabalpur up to 1954
On September 4 1952 the child Anjum was born to her by the said Trivedi
In November 1953 she bore another child to him of the name of Yusuf alias Babul
In 1954 the appellant with her said two children her mother who had been living with her and Trivedi left Jabalpur and came to live in Bombay
After coming to Bombay Trivedi for sometime lived with his relatives as he could not find independent accommodation
During this time the appellant with her children and mother stayed with the respondent who was then living in Bombay but Trivedi used to visit the appellant daily at the residence of the respondent
In January 1956 the appellant bore a third child to Trivedi called Unus alias Chandu
After the birth of Unus 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 599 After returning from Khandala Trivedi was able to secure a flat for himself in Marine Drive Bombay and the appellant with her mother and two sons began to stay with him there
In April 1937 Trivedi moved into another flat in Warden Road Bombay with the appellant her two younger children and mother and has since then been living there with them
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
In these circumstances the appellant made her application under section 491 of the Code of Criminal Procedure 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
She also stated that in view of the relationship between the parties she had not earlier taken the matter to court
On the date of the application the respondent was away in Pakistan
She had not however taken the child Anjum with her but had left her in her flat at Bombay in charge of her cousin Suggi and an Aya Rozi Bhangera
The appellant stated that the respondent had asked her sister Bibi Banoo and the latter s husband Mahomed Yakub Munshi to look after the child
The appellant had therefore made these four persons only the respondents to her application
Later on the respondent s arrival back in Bombay she also was made a party to the application
The other respondents contended in the High Court that they had nothing to do with the child and had been made parties to the application unnecessarily
They have not appeared in this appeal It is clear however that they did not make over the custody of the child Anjum to the appellant when the application was made and the affidavits filed by them leave no doubt that their sympathies are with the respondent Kaniz Begum
The state of Bombay was also Made a respondent to the application but that was a mere matter of form
The State has no interest 600 in the case and has not taken any part in the proceedings
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 said that the appellant s mother had given the appellant to her to bring up when very young as she had not the means to do so herself and since then the appellant had been living with her all along and left her flat in company with Trivedi only during her temporary absence in Pakistan in 1956
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 learned Judges of the High Court observed that the case raised various controversial questions specially as to the paternity of the child as to whether the respondent had made the appellant live in the keeping of different persons and also as to whether she had prevented the appellant from having access to the to the child
The learned Judges observed that it was not the function of a court in an application under section 491 to record findings on such controversial facts and that in these circumstances the proper forum for the appellant was to move a civil court under the 601 Guardian and Wards Act for the custody of the child
The learned Judges further observed that they were prima facie satisfied that the child was not illegally and improperly detained by the respondents
They therefore dismissed the appellant s application
We are unable to appreciate the view the learned Judges of the High Court
It seems to us that the controversial facts referred to by them were wholly irrelevant to the decision of the application
We have not been able to find one single fact relevant to the issue in this case which is in controversy
The facts which are abundantly clear and beyond dispute are these
The child Anjum is the illegitimate daughter of the appellant who is a moslem woman
The child was at the date of the application less than six years  old and now she is just over seven years old
The appellant is a singing girl by profession and so is the respondent
The appellant stated in her affidavit that the respondent was in the keeping of a man and this the respondent has not denied
It is not the respondent s case that she is a married woman leading a respectable life
In fact she admits that she allowed Trivedi to live in her flat with the appellant as his mistress and took money from him for  Lodging and Boarding Charges 
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
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 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 section 491
This position is clearly recognised in the English cases concerning writs of habeas corpus for the production of infants
602 In The Queen vs Clarke 1 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
For this purpose the Indian cases hereinafter cited may be referred to
The terms of section 491 would clearly be applicable to the case and the appellant entitled to the order she asked
We therefore think that the learned Judges of the High Court were clearly wrong in their view that the child Anjum was not being illegally or improperly detained
The learned Judges have not given any reason in support of their view and we are clear in our mind that view is unsustainable in law
Before making the order the court is certainly called upon to consider the welfare of the infant concerned
Now there is no reason to think that it is in the interest of the child Anjum to keep her with the respondent
In this connection it is relevant to state that at some stage of the proceedings in the High Court the parties appeared to have arrived at a settlement whereby it had been agreed that the child Anjum would be in the custody of the appellant and the respondent would have access to the child
The learned Judges of the High Court however were not prepared to make an order in terms of this settlement because as they said  It did not appear to be in the interest and welfare of the minor 
Here again they give no reason for their view
Both parties belong to the community of singing girls
The atmosphere in the home of either is the same
The appellant as the mother can be expected to take better care of the child than the respondent
Trivedi has acknowledged the paternity of the child
So in law the child can claim to be maintained by him
She has no such right against the respondent
We have not been able to find a single reason how the interests of the child 1  603 would be better served if she was left in the custody of the respondent and not with the appellant
We further see no reason why the appellant should have been asked to proceed under the Guardian and Wards Act for recovering the custody of the child
She had of course the right to do so
But she had also a clear right to an order for the custody of the child under section 491 of the Code
The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under section 491
That is well established as will appear from the cases hereinafter cited
The learned Advocate for the respondent said we should not interfere with the order of the High Court as it was a discretionary order
The learned Judges however have not given any reason which led them to exercise their discretion in the way they did
We are not satisfied that the discretion was judicially exercised
We are clear in our view that the judgment of the High Court was wrong and should be set aside
It is further well established in England that in issuing a writ of habeas corpus a court has power in the case of an infant to direct its custody to be placed with a certain person
In The King vs Greenhill 1 Lord Denman C J said  When an infant is brought before the Court by habeas corpus if he be of an age to exercise a choice the Court leaves him to elect where he will go
If he be not of that age and a want of direction would only expose him to dangers or seductions the Court must make an order for his being placed in the proper custody
 See also The Queen vs Clarke 2
In Halsbury s Laws of England Vol
IX article 1201 at p 702 it is said  Where as frequently occurs in the case of infants conflicting claims for the custody of the same individual are raised such claims may be enquired into on the return to a writ of habeas 1   640 III ER 922 927
2   604 corpus and the custody awarded to the proper person Section 491 is expressly concerned with the directions of the nature of a habeas corpus
The English principles applicable to the issue of a writ of habeas corpus therefore apply here
In fact the Courts in our country have always exercised the power to direct under section 491 in a fit case that the custody of an infant be delivered to the applicant see Rama Iyer vs Nataraja Iyer 1 Zara Bibi vs Abdul Razzak 2  and Subbuswami Goundan vs Kamakshi Ammal 3
If the courts did not have this power the remedy under section 491 would in the case of infants often become infructuous
We therefore set aside the judgment and order of the High Court and direct the respondents other than the State of Bombay to make over the custody of the child Anjum to the appellant
Let the child be produced by the respondents before the Registrar Appellate Side High Court of Bombay and the Registrar will than make over custody to the appellant
The passport in respect of the child Anjum deposited in this Court by the respondents may be made over to the Advocate on record for the appellant
The injunction restraining the removal of the child Anjum outside Greater Bombay will continue till she is delivered to the appellant
Appeal allowed
1 AIR 1948 Mad
2 1910 XII Bom LR 891 3 Mad


Summary:
Although it is well settled that a court of appeal should not lightly disturb a finding of fact arrived at by the trial judge who had the opportunity of observing the demeanour of the witnesses and hearing them that does not mean that an appellate court hearing an appeal on facts can never reverse such a finding
Where the decision on a question of fact depends on a fair consideration of matters on record and it appears to the Appeal Court that important considerations have not been taken into account and properly weighed by the trial judge and such considerations clearly indicate that the view taken by the trial judge is wrong it is its duty to reverse the finding even if it involves the disbelieving of witnesses believed by the trial court
Where again the trial judge omits to properly weigh or take into account 664 important considerations bearing on the credibility of witnesses or the probability of their version which point the other way it is the duty of the court of appeal to reverse the findings of the trial Court
If the question of fact does not solely depend on the credibility of witnesses for its determination but is one of inference from proved facts on a consideration of probabilities the court of appeal stands in the same position as the trial court and is free to reverse its findings
Shunmugayoya Mudaliay vs Manikka Mudaliar 1909 LR 36 IA 185 Coghlan vs Cumberland 1898 i Ch
704 Wall Thomas vs Thomas 1947 i All ER 582 Bonmax vs Austin Motor Co Ltd 1955 i All ER 326 Sayju Pershad vs Raja jwaleshwari Pratap Narain Singh 195I ILR and Laljee Mohomet vs Girlder  referred to
Consequently where as in the present case the plaintiff brought a suit for pre emption and the question for determination was one of fact namely whether the plaintiff had performed the essential ceremonies of Talab E Mowasibat and Talab E Ishtashad and the trial court believed his witnesses not because it had been impressed by their demearour and the High Court in appeal disbelieved them in the light of the probabilities of the case and reversed the decision of the trial court
Held that it was not correct to contend that the way in which the High Court had approached the case was wrong or that its decision was not justified