1999 PLP 2612 (YLR)

(i) To direct respondent No.3 to secure the minors/detenues namely, Master Aruba and Master Muhammad Saif from the wrongful confinement of respondent No.1 and hand over the custody of the minors/detenus to the applicant as she is real mother; (ii) to direct the respondent No.1 not to remove custody of the minors/ detenus from the jurisdiction of this Honourable Court till the disposal of this application and respondent No.1 may also be directed to deposit his and children Passports in this Honourable Court. (iii) .................; (iv) ................. Notices were respondents. The respondent No. l produced the minors and also filed counter‑affidavit containing adverse allegations against the applicant. I heard learned counsel for the parties and perused the record. Learned counsel for the applicant submitted that the respondent No. l being involved in criminal cases is incapable of maintaining the children as he is also fugitive from law while the applicant has not remarried and is capable of looking after the children. In support of his submission learned counsel for the applicant cited Ahmed Sami and two others v. Saadia and another, 1996 SCMR

268. Learned counsel for respondent No. l vehemently opposed this application and submitted that the two minors are being kept properly and legally by the respondent No. l who is their natural guardian. He further submitted that even in his absence the two children are being looked after by his sister and he has also appointed a governess for that purpose. He also alleged that there is another person who claims the applicant to be his wife having married her at Dubai. Lastly he submitted that if the applicant is aggrieved she may seek her remedy under the Guardians and Wards Act instead of filing habeas corpus petition under section 491, Cr.P.C. In support bf his submissions, the learned counsel for the respondent No. l cited Mst. Aisha Bibi v. Nazir Ahmed, 1981 SCMR

301. In this order it was held by the Hon'ble Supreme Court as follows:‑‑ "From the facts narrated, it is clear that the dispute between the patties is essentially regarding the custody of the girl, and no question of any forcible detention arises. The petitioner is the maternal grandmother of Mst. Zahida Parveen, whereas respondent Muhammad Ramzan is her paternal uncle. The learned Judge in the High Court appears to us to be right in thinking that this was essentially a matter for the Guardian Judge to resolve, and no jurisdiction was made out for issuing a direction in the nature of a writ of habeas corpus. " During the course of arguments, learned counsel for the respondent No. l also urged that witnesses' may be summoned for recording evidence in order to come to a just and proper conclusion, particularly, regarding the jurisdiction of this Court under section 491, Cr.P.C. Learned counsel for the State submitted that maintenance of minors by the sisters of the respondent No.1 and ‑a governess will not serve the object, particularly, when the mother is alive and there is nothing against her which may disentitle her to have the custody of the minors. After having gone through the record and the case law cited by the learned counsel for the parties, 1 find no force in the submissions of the learned counsel for the respondent No.1 particularly regarding the non‑maintainability of the application under section 491, Cr.P.C. in this Court. In my humble view, in appropriate cases this Court is quite competent to deal with the case of the minor by making over his/her custody to the mother, particularly when the minor of a tender age is deprived of custody and she has not contracted another marriage. Likewise, the remedy under the Guardians and Wards Act is no justification for denying the legitimate right and claim under section 491, Cr.P.C. Even while deciding the question of interim custody temporarily this Court has jurisdiction to give paramount consideration to the welfare of the minor. In the instant case maintenance of minors by the sisters of the respondent and a governess who has been appointed for this particular purpose could not be justified. In this regard it would be relevant to quote the following observations of Beaumont, C.J. in Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR 1941 Bombay 103:‑‑ "The paramount consideration in the matter of a custody of a minor of tender years is the interest of the child rather than the rights of the parents. Human nature being much the same all the world over, if the mother is a suitable person to take charge of the child it is quite impossible to find an adequate substitute for therefore the custody a child of tender years an, consequently the mother is preferable to the father in such case. Orders as to the custody of a child being always of a temporary nature those interested in the minor are at liberty to apply to the Court at any time for the change of minor's custody." (See also Rehmatullah Ch. v. Mst. Syeda Halalai Begum and others 1974 SCMR 305). Thus without making any comment on the allegations and counter‑allegations, and/or the respective entitlement of the parties to have custody of the two minors at this stage I deem it appropriate to order that it would be in the welfare of the minors that their custody may be handed over to the applicant till suitable order according to law is passed by the learned Guardian Judge in any proceedings under the Guardians and Wards Act or it is modified by this Court. The learned Guardian Judge would be entitled to pass any order according to law, without being influenced by the observations made in this order, Furthermore, since the respondent No.1 being the father is legally bound to maintain the minor and is also entitled to meet them, therefore, in case any suit is filed before the Family Court these issues may also be decided according to law. However, it is ordered that the applicant will allow the respondent No. l to meet the children for half an hour on the 1st and 15th of every month before the Nazir of this Court and in case if these two days are declared holidays the respondent No. l will be entitled to meet the minors on the next following day. On behalf of the respondent No.1 apprehensions were expressed that the applicant may remove the two minors out of Karachi. She is directed not to remove the two minors without permission, from the jurisdiction of this Court or the permission of the learned Guardian Judge, in case if any suit is filed under the Guardians and Wards Act. She is holding a passport, but for the time being there is no need to seize the same. However, Immigration Authorities concerned are directed not to allow the applicant to take away the minors outside the jurisdiction of this Court by any route without permission as observed hereinabove. This would be purely interim arrangement till further orders as indicated above. With the above observations directions the application stands disposed of. N.H.Q./H‑95/K Petition accepted.