2025 PLP 272 (CLC)

ADNAN-UL-KARIM MEMON, J.

Petitioner Mst. Zobia Naz has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan seeking direction to the police official to produce baby Minal aged about 3 years.

2. This Court vide order dated 15.07.2024 issued notice to the respondents meanwhile directed the SHO Sharifabad police station to produce minor baby Minal before this Court in compliance of the order the minor baby has been recovered from the custody of her father who is also present along with his counsel.

3. Learned counsel for the petitioner has submitted that custody of the minor needs to be handed over to her on the premise that the mother cannot be deprived of custody of the minor.

4. The aforesaid stance has been refuted by the learned counsel representing the respondent father and referred to the Divorce Deed dated 15.04.2024 and clauses whereof explicitly shows that the petitioner voluntarily handed over the custody of minor to the respondent father with the understanding that she will not claim her custody at any stage.

5. On the question of the maintainability of this petition the learned counsel for the petitioner has submitted that this Court can exercise powers under Article 199 of the constitution of the Islamic Republic of Pakistan and the custody of minor cannot be denied to the mother till the minor attain the age of puberty and the minor, still not reached the said ages, however, at this stage, the father of the minor, who is present in Court agrees for applying the Guardians and Wards Court for proper custody of minor.

6. Since this matter has been taken up the welfare of the minor is required to be seen and to ascertain whether she is in illegal detention or otherwise, as this Court can enforce the fundamental right of the mother to have custody of her minor daughter.

7. On the plea that the father is natural guardian and minor is residing with him peacefully, further, this Court has no jurisdiction to entertain the present petition in the terms that minor is no more in illegal custody. He prayed for a direction to the petitioner-mother to move the trial Court for custody of minor if she intends to do so.

8. I have heard the parties and perused the material available on record and case law cited at the bar.

9. The record reflects that the petitioner is a real mother and natural guardian of minor and has preferred this petition for the custody of the minor, admittedly, the minor Minal aged about 3 years, and would require constant care; and the petitioner has an emotional attachment with the minor and the issue of the welfare of the minor is yet to be decided by the learned Guardians and Wards Court for which the parties have to approach.

10. It is well settled that proceedings under Section 491, Cr. P.C. is not available for declaring any person as guardian or for determining all the questions relating to the custody of minor because the determining all the questions relating to the custody of minor because the final decision of regular custody is to be decided in the proceedings initiated by the parties claiming the custody of the minor before the Guardians and Wards Court.

11. It is a well-settled law that the paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view of the age, sex, and religion. Welfare includes his/her moral, spiritual, and material well-being. While considering what is the welfare of the minor the court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian, his/her nearness of kin to the minor, and the preference of the minor if he or she is intelligent enough to make it.

12. The invocation and passing of the writ of Habeas Corpus is enshrined in Article 199(1)(b)(i) of the Constitution whereby any person may file an application seeking the High Court to direct that "a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". However, the invocation and passing of the writ is subject to the satisfaction of the High Court and no adequate remedy is provided by the law.

13. Primarily, the Guardians and Wards Act allows a person to be appointed the guardian of a minor "if it is satisfied that it is for the welfare of the minor ..." It is only once a person is appointed the guardian that they may seek recourse to Section 25 of the G & W Act for recovery of custody of a ward. Whatever the inter se relations between the parents may be, the purpose of a writ of Habeas Corpus when it comes to the production of a child is to ensure that the child is, at any given moment, capable of being produced before a Court of law. However, "... there can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out ..." The writ must only be issued in favor of a person who is entitled to custody of the child.

14. This right to custody, however, "is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is.

15. The Supreme Court in the case of Mst. Qurat-ul-Ain v. Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others (2024 SCMR 486) has held that the tendency of the High Courts to readily and unhesitatingly resort to extreme measures by involving law enforcement agencies in family matters cannot be appreciated, especially where no element of criminality is there and the child is in the lawful and rightful custody of the parent. Such actions cause unnecessary trauma and harassment for the concerned parent, especially where the concerned parent is the real father of the child. The High Court must exercise extreme care, caution, and circumspection in such matters. Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping, and/or abduction of the child is involved. Issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the G & W Act provides the Guardian Court with all requisite powers to pass and enforce its orders in matters of custody of the child(ren).

16. I am of the view that the purpose of filing this petition is served as the minor has been produced before this Court and is no more in illegal detention and the parties have to seek permanent custody of minor which is to be decided by the Guardians and Wards Court.

17. I am satisfied with the assertion of the parties to the extent that the minor is not in illegal detention so far as her custody is concerned it is for the family/Guardian Judge to regular the custody of the minor in terms of the law laid down by the Supreme Court in the case of Mst. Beena Muhammad v. Raja Muhammad (PLD 2020 SC 508).

18. In view of the position, the mother of the minor namely baby Minal is directed to approach the learned Guardians and Wards Court for regular custody of the minor in terms of the law laid down by the Supreme Court in the case of Mst. Beena as discussed supra, and if the trial Court calls on the respondent father to produce the minor the respondent father will abide by the directions and allow the petitioner mother to meet her minor daughter without resistance at any time, in case of failure on his part appropriate action in terms of Section 204 of the Constitution will be taken. On the aforesaid proposition, I am fortified by the decision rendered by the Supreme Court of Pakistan in the case of Humayun Hassan v. Arslan Humayun and another, (PLD 2013 SC 557).

19. In the light of the facts and circumstances mentioned above more particularly in terms of judgment rendered by the Supreme Court in the case of Mst. Qurat-ul-Ain as discussed supra, the instant petition has served its purpose which is hereby disposed of along with the pending application(s), if any, with direction to the learned Guardians and Wards Court to decide the issue of custody of the minor if approached by the petitioner mother within two weeks positively after hearing the parties. SA/Z-8/Sindh Order accordingly.