P L D 1994 Lahore 577 (PLP)

This is a petition under section 491 of the Cr.P.C. invoking the extra?ordinary jurisdiction of this Court for the production of the minor boy namely, Haidar Jawad Sarwar aged 2‑1/2 years, which according to the petition, was within the custody of the mother, who was expelled from the house of the respondent in three garments after being deprived of the custody of the minor Haidar Jawad Sarwar; thereafter the petitioner had been trying her level best to get back the custody of the minor but it was all in vain. On 4‑12‑1993, the petitioner received a divorce notice which ultimately had become effective after failure of many reconciliation efforts and the requests for the return of the minor through Jirgas. Ultimately the petitioner filed Criminal Miscellaneous No.37‑H/94 in the Lahore High Court, Rawalpindi Bench, Rawalpindi which was returned on the point of jurisdiction and ultimately the petitioner withdrew the Criminal Miscellaneous No. 37‑H/94 for filing the same before this Court. Hence the present habeas petition.

2. The respondent appeared in person along with his counsel and objected on the point of jurisdiction of the High Court to entertain the instant petition in view of the legal and proper custody of the minor child by the respondent. He also objected to the maintainability of the petition under section 491, Cr.P.C. for the reason that it is only the Guardian and Wards Court which can finally adjudicate upon the custody of the minor in the paramount consideration of the welfare of the minor. The respondent has relied upon Mst. Zohra Begun v. Sh. Latif Ahmad Munawwar (PLD 1965 (W.P.) Lahore 695). His main contention is that so far as the right of `Hizanat' of a minor is concerned, there is no Qura'nic or Traditional Text on that point and as the petitioner is working in the Bank from 9‑00 a.m. to 5‑00 p.m. and NTM (Television) in the evening (which is the main controversy between the marital spouses) she will not be able to look after the child in her best capacity as a mother. ?

3. So far as the question of jurisdiction of the High court under section 491 of the Cr.P.C. is concerned in view of the judgment of the Supreme Court reported in Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891), it is expressly held that the matters to be dealt with by section 491 Cr.P.C and the Guardians and Wards? Act are entirely different and the provisions are neither mutually exclusive nor one overlaps or destroys the other. In such cases the substance of the proceedings is to be seen and thereafter the proceedings are to be diverted to the appropriate channels A whether a certain case falls within the ambit of section 491 of the Cr.P.C. or under the Guardians and Wards Act.

4. Similar view was taken by the Supreme Court in Muhammad Naseer Humayon v. Mst. Syeda Ummatul IChabir (1987 SCMR 174), Mst. Zubaida Khatoon v. Saadullah A. Siddiqui etc. (1992 PCr.LJ 690), Shagufta Andleep v. Abdul Razzaq (1992 PCr.LJ 2168) and Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6), wherein it was held that the High Court has two‑ fold jurisdiction under section 491, Cr.P.C., (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if? he was illegally or improperly detained. In Shabbir Hussain v. Mst. Shahnaz Parveen (1989 PCr.IJ 1689), it was held that in matters pertaining to the custody of minors of tender age the jurisdiction under section 491, Cr.P.C. should be exercised by the High Court without prejudice to the rights of the parties to have the matter finally adjudicated upon by the Court of Guardians and Wards Act; the remedy under section 491, Cr.P.C. is definitely more efficacious, speedy and appropriate as compared to the slow process of the proceedings before the Guardian Judge. In Muhammad Javed Umrao's case, the Supreme Court was pleased to hold that the mother could invoke the jurisdiction of the High Court under p section 491, Cr.P.C. during the pendency of the petition under the Guardians and Wards Act. Similar view was taken in Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir (1987 SCMR 174), Mst. Naushabah Tabassam v. Ghulam Madni Shah (1987 PCr.LJ 1318) and Mst. Rehana v. Arshad Khan (1991 MLD 1393) (Karachi). It was held that the Court has power to restore the custody of a minor without prejudice to the rights of the parties to have a matter finally adjudicated upon by a Guardians Judge having jurisdiction under sections 12, 17 and 25 of the Guardians and Wards Act. It was held that no one can substitute a mother. Mst. Zohra Begum's case (PLD 1965 (W.P.) Lahore 695); the judgment relied upon by the counsel of the respondent is entirely based upon different facts. In fact the question which fell for determination in that case was upon an appeal against the judgment and decree passed by the Guardians Judge in respect of the custody of the two minor children and the question which arose in that case was whether among Muslims, a father, as against the mother, was entitled to the custody of his minor son who had attained the age of seven years. Even in that case the custody of the minor was taken away from a stranger and was handed over .to the mother. Hence the objection of the respondent as to jurisdiction of the High Court in respect of the instant petition stands refuted. 5. ‑ The provisions of section 491, Cr.P.C. are in fact more appropriate, efficacious and speedy. If on the facts and circumstances of the case the Court comes to the conclusion that someone is illegally or improperly detained in public or private custody, (i) if he is a major, will be set at liberty, and (ii) if the person is a manor the Court can restore the custody to the person with whom it, Vested prior to the improper deprivation of the custody. The absolute authority to determine the final custody of the minor vests in a Court of Guardians and Wards Act which will finery decide the case of the minor. This Court also enjoys parental jurisdiction in respect of the minors and also keeps into consideration the relevant law governing the mirror. So far as the custody of the minor is concerned the Islamic law in its ‑entirety is completely different from the European law. Being the law nearest to nature the custody of mother and father is termed as "Hizanat" and `Willayat', the former is vested in mother and the latter in the father. The female child and her future growth demands the longer custody (Hizanat) of the minor (up to puberty) with the mother while the male child who is physically and temperamentally different from the female needs a tender, soft and affectionate custody of the mother up to certain age i.e. seven years. When the mental growth begins he needs the custody of father which is termed as `Willayat'. Even as to the question of period of custody of minor, on this premises also the welfare of minor will be a paramount consideration because as is held by the Supreme Court that in the absence of a universally accepted rule of decision, it is for the Court to ascertain on the grounds of justice, equity and good conscience whether the custody of a minor with one of the spouses should continue or to be disturbed even after the prescribed period for `Hizanat' or `Willayat'. This is the parental jurisdiction which wholly vests with the Guardian and Wards Court.

6. In the instant case the custody `Hizanat' vests with the mother as the minor is only 2‑1/2 years old. If the mother is being deprived from the custody of the minor for certain period this, to my view, will he a continuing wrong H against her, and the person who is deprived from that custody needs restoration of the custody when she of he invokes the jurisdiction of the High Court under section 491(1) of the Cr.P.C.

7. I have seen the minor in the Court. He is not enjoying good health and in view of the present state of affairs, allow this petition and order restoration of the minor to the custody of the mother. The parties may have a recourse to the Court of Guardians and Wards Act for the final adjudication of the custody of the minor in the test welfare of the minor. In the meantime the minor who is a male child, needs protection, assistance, love and affection of the father for his best development and mental growth. Unfortunately, it is a broken home but the minor child must not suffer from the after effects of such broken matrimonial ties between the parents. So in the best interest of the minor,? direct the petitioner to allow the father to meet the minor more often that is to say after every fortnight at petitioner's residence and let him give the minor any assistance if he wants so. M.B.A./Z‑133/L ?????????????????????? ,Order accordingly.