2012 PLP 1335 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of instant petition filed under section 491 of the Criminal Procedure Code, Mst. Chanda petitioner seeks recovery of her real daughter Noor-ul-Huda minor born on 28 June, 2004 with the assertions that she is in illegal and improper custody of respondents No.2 and 3, who happen to be brother-in-law and sister-in-law of the petitioner respectively and also real uncle and aunt of minor.

2. Facts of the case, arising out of the petition in hand are that being close relatives and due to cordial relationship between the parties, with the mutual consent and free will, the petitioner handed over the custody of Noor-ul-Huda minor to respondents Nos.2 and 3, who are still issueless. It is pertinent to mention here that husband of the petitioner and respondent No.2 are residing at Kuwait in order to earn their livelihood. After elapse of 7 years the differences arose between the parties due to which the petitioner made a claim for custody of her daughter, which was residing with respondents Nos.2 and 3 since 7 years. In order to get her grievance redressed, the petitioner primarily filed an application under section 491, Cr.P.C, before the learned Sessions Judge, Faisalabad, which was dismissed by Mr. Shaukat Kamal Dar, learned Additional Sessions Judge Jaranwala, in terms of order dated 9-5-2011. While disposing of the application of the petitioner, the learned Additional Sessions Judge observed that minor Noor-ul-Huda has been residing with respondents Nos.2 and 3 satisfactorily and happily. Being aggrieved by the conclusion arrived at by learned Additional Sessions Judge, the petitioner has filed the instant petition before this Court.

3. Learned counsel for the petitioner submits that paternity of minor Noor-ul-Huda is not disputed as respondents Nos.2 and 3 have admitted that minor is real daughter of the petitioner, hence in such circumstances she is in illegal and improper custody of respondents Nos.2 and

3. Learned counsel vehemently submits that the petitioner being the natural guardian of minor, her custody is to be regulated by this Court. Learned counsel next argues that prior to dispute the minor child was on visiting terms, which has been deprived by respondents No.2 and 3, therefore, custody of the minor be declared as illegal and she may be directed to be handed over to the petitioner being the live natural guardian. Learned counsel in support of his contentions has placed reliance on the following case-law:-- PLD 1997 SC 852 (Nisar Muhammad and another v. Sultan Zari) 1991 SCMR 19 (Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi and 2 others) 1997 MLD 197 (Afshan Naureen v. Nadeem Abbas Shah).

4. As against above, learned counsel representing respondents Nos.2 and 3 submits that admittedly there is no dispute regarding the paternity of the minor but at the same time this Court has to take into consideration the welfare of the minor. Learned counsel vehemently submits that minor Noor-ul-Huda while appearing before the court of learned Additional Sessions Judge submitted that she is comfortable with respondents Nos.2 and 3 and she has further reiterated her statement before this Court and although such statement is not valid being minor but at the same time the affection shown by Noor-ul-Huda reflects that she is more attached with respondents Nos.2 and 3 than the petitioner. Learned counsel for respondents Nos.2 and 3 seeks dismissal of the petition. To substantiate his assertions learned counsel has placed reliance on the dictum of law in the cases of Mst. Aisha Bibi v. Nazir and 2 others (1981 SCMR 301) and

1. Abdul Rehman Khakwani,

2. Shahnaz Abdul Rehman v.

1. Abdul Majid Khakwani,

2. Nilofar Khakwani,

3. The State 1997 SCMR 1480.

5. I have heard the arguments advanced from both sides and gone through the record available on file.

6. Before recording observations it is worth mentioning that there is no dispute regarding the paternity of minor child because even according to respondents Nos.2 and 3 minor Noor-ul-Huda is real daughter of the petitioner, however, this Court is conscious of the fact that scope of section 491, Cr.P.C. is very limited and while entertaining such petition it has to only see whether the custody is illegal or improper. There is no cavil to this proposition that in the instant case the minor child was handed over to respondents Nos.2 and 3 by the petitioner without any coercion and with her own free will and consent as at that time the relationship between the parties was cordial and there was absolutely no dispute whatsoever. Subsequently the dispute arose between the parties as petitioner had demanded back the custody of minor and the petition under section 491, Cr.P.C. was the net result of grudge in the mind of the petitioner. Nevertheless statement of minor aged 7 years cannot be given much credence but at the same time Noor-ul-Huda even before this Court has shown more affection with her step parents, who even otherwise are real uncle and aunt as compared to her natural parents.

7. In the case of Abdul Rehman Khakwani, 2.Shahnaz Abdul Rehman v. Abdul Majid Khakwani, 2.Nilofar Khakwani, The State 1997 SCMR 1480, the august Supreme Court of Pakistan while dealing a similar question had held as under:-- "S.

491. Habeas corpus jurisdiction.

High Court is not competent to invoke/exercise jurisdiction under section 491 in a case where natural parents had not only handed over custody of their minor child to uncle and aunt of child, but natural father of child got appoint in Court of Guardian uncle of child as guardian of child." Similar view was affirmed in the case of Mst. Aisha Bibi v. Nazir and 2 others (1981 SCMR 301). Needless to mention that the question whether custody of the minor is illegal or improper can evenly be resolved by the Guardian Court in terms of section 25 of the Guardians and Wards Act, 1890, keeping in view the welfare of the minor especially when admittedly she is residing with her step parents since 7 years and had developed love and affection. Further this aspect is also to be kept in mind that if her custody is declared illegal it may not affect her emotionally and psychologically.

8. For the foregoing facts and circumstances and while humbly relying upon the case-law reproduced above, this Court is persuaded to hold that custody of Noor-ul-Huda minor is not improper/illegal falling within the ambit of section 491, Cr.P.C. However, the petitioner would be at liberty to file application under section 25 of the Guardians and Wards Act, 1890 for redressal of her grievance, if so advised.

9. The instant petition stands disposed in the above terms. M.W.A./C-5/L Petition dismissed.