2019 PLP 116 (SCMR)

IJAZ UL AHSAN, J.

The petitioner had filed an application under section 491, Cr.P.C. for production of minor namely, Muhammad Rohan before the Islamabad High Court, Islamabad. She stated therein that she was a lecturer in Quaid-e-Azam University and wanted to proceed to Paris, France for pursuing her PhD degree. However, Respondent No.1 (husband) had allowed her to do so only on the condition that she applied for his visa too and in doing so he had kept the minor (who was less than a year old at that time) with him in Pakistan. She claimed that after reaching Paris she applied for a visa for her husband. However, the same was rejected. This infuriated Respondent No.l. The Petitioner claims to have quit her Ph.D program in May, 2018 in view of Respondent No.l's constant threats and the fact that the minor had been snatched by him.

2. As the couple was inter-se related, the elders of the family intervened. Upon such intervention the respondent handed over custody of the minor to the petitioner. On 03.06.2018 he visited the petitioners' residence and took away the minor from her custody. This prompted the petitioner to file an application for production of the minor before the High Court. The said application had been disposed off vide impugned order holding that respondent No.1 had taken the minor out of the territorial jurisdiction of the Islamabad High Court.

3. During the course of hearing of this case multiple notices were issued to the respondent No.l. Upon his failure to appear before this Court, bailable warrants were issued. Vide order dated 10.08.2018 all relevant agencies of the Federal as well as the Provincial governments were directed to produce/assist in producing Respondent No.1 as well as the minor before this Court.

4. On 16.08.2018 both the minor as well as respondent No.1 were produced before this Court. After hearing the parties and considering all attending circumstances, we handed over custody of the minor to the Petitioner. It was also directed on the said date that passport of the petitioner be deposited with the Registrar of this Court to obviate the possibility of the minor being removed from the territorial limits of Pakistan.

5. Having heard the learned Counsel for the parties we find that the minor was forcibly taken away from the lawful custody of his mother within the territorial limits of Islamabad. The minor was thereafter moved to Lahore and later to Karachi in order to evade the process of law. This minor is about one year old and obviously needs his mother to survive. No reason whatsoever has been alleged or pleaded that may furnish any justification to deny custody to the real mother and hand him over to Respondent No.l. Prima facie Petitioner has a right to have custody of the suckling baby. Such right is recognized by the law. We are also convinced that there are material and overwhelming factors pointing towards welfare of the minor being best served and protected, if the custody of minor is handed over to the Petitioner. We are of the opinion that Islamabad High Court erred in law in refusing to exercise jurisdiction despite the fact that the custody of the child was forcibly taken away from the Petitioner while both were residing within the territorial jurisdiction of the Islamabad High Court.

6. For the aforenoted reasons, we set aside the judgment of the High Court, convert this petition into an appeal and allow the same. The custody of the minor Muhammad Rohan which has already been handed over to the Petitioner shall continue, subject to any other order passed by a Court of competent jurisdiction in appropriate proceedings. The Respondent may however approach the Guardian Court for determination of his rights of visitation. We further direct that in accordance with our order dated 16.08.2018, appropriate legal action may be initiated against Respondent No.1 (if not already initiated). The said Respondent shall however not be precluded from asserting his rights before a Guardian Court in accordance with law.

7. In furtherance to the above, it is directed that the Petitioner shall not remove the minor out of the territorial limits of Pakistan without express permission of a Court of competent jurisdiction. MWA/S-43/SC Order accordingly.