Qayas Ahmad v State of U.P 
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 –
· 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, agreed
to handover the child.
· 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.
· 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.
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 –
– 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. 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. Hizanat is basically the power to make decisions regarding the minor, it
is different from actual physical custody.
In Mumtaz begum v. Mubarak Hussain
, 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 Kapoor v. Virendra Kapoor
, 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. On failure of natural
guardian, the guardianship of child is governed by GWA. The court shall
consider the inter alia personal laws of the minor. It is a general
principle that the custody of the child should be with mother till the child
attains the age of five. 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.
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. Mandamus lies to enforce a duty of public nature not to resolve a
private dispute. The applicant seeking a writ of mandamus must show that
there exists a right to compel the performance of some duty cast on the
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 case the court granted the
custody of child to the single woman. Similar stance was affirmed in Mumtaz
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 extrajudicial 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. Umadevi
 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 bodies, 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. No such right is vested in the father rather
the Muslim personal law is inclined towards the mother at this point.
Applying to the appropriate court:
the appropriate court for custody of child is a family court or a district
court. 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.
- Writ Petition No. 11795/2019 at High Court of Judicature at Allahabad,
- 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.
- 35 At-Talaq 6
- 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.
- Ibid at 443.
- AIR 1986 MP 221.
- AIR 1982 SC 792
- 9, Guardians and Wards Act, 1890.
- 7, Guardians and Wards Act, 1890.
- 17, Guardians and Wards Act, 1890.
- Manju Tiwari v. Rajinder Tiwari, AIR 1990 SC 1156.
- “Mandamus.” The Yale Law Journal, vol. 19, no. 6, 1910, pp. 462–465, 462
- 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,
- Oriental Bank of Commerce v. Sundar Lal Jain, (2008) 2 SCC 280.
- Gohar Begum v. Suggi Alias, AIR 1963 SC 93.
- Mumtaz Begum, supra note 6.
- 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.
- State of Karnataka v. Umadevi, (2006) 4 SCC 1.
- 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.
- supra note 14 at 114-15.
- supra note 3.
- supra note 8.
- supra note 4 at 444.