2014 PLP 152 (YLR)

AFTAB AHMED GORAR, J.

This petition has been filed by the petitioner namely Shazia Bano for recovery of her daughter namely Salwa Zehra aged about 21 months from the custody of her father Gulzar Ali. In this case, parties being husband and wife parted their ways on account of dissolution of marriage tie between them. They had a female child of 21 months old who was allowed to remain in the custody of her father, in pursuance of a document written between the parties. Subsequently, Mst. Shazia Bano, petitioner approached this High Court by invoking its jurisdiction under constitution petition under Article 199 of the Islamic Republic of Pakistan. Learned counsel appearing for the petitioner stated that the minor being 21 months of age has got a right guaranteed her to live with her mother till the time of her attaining puberty according to the Muslim Shariat and she cannot be deprived from her such right merely on the basis of a document which has been executed between the parties as per their convenience. He further stated that there are number of cases wherein such document written between parties at the time of dissolution of the marriage relating to the custody of minor have not been considered to be a binding document because the supreme consideration is the welfare of the minor. According to him as the age of minor is 21 months therefore, except the mother, no one else is legally entitled to keep her custody as after dissolution of marriage she had not contracted second marriage. Even otherwise petitioner is not in the adverse interest of the minor in any manner, therefore, the petition may not be decided into the technicalities of law, in the interest of justice and to watch the supreme interest of the minor, may have allowed her custody to the mother. Learned counsel to sub-stantiate his plea, relied upon Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir (1987 SCMR 174) and Mst. Khalida Parveen v. Muhammad Sultan Mehmood, PLD 2004 SC

1. Learned counsel appearing for the respondent No.5 vehemently opposed the petition on the ground that respondent No.5 was not retaining illegal custody of the minor because he being the father was natural guardian, thus he was fully qualified to keep her custody with him. He further explained that petitioner herself handed over custody of the minor to the father at the time of dissolution of the marriage by executing a document therefore, in such like situation, if the superior courts will entertain habeas corpus petition against father then nobody would approach the Family/Guardian Judge for the change of custody and the relevant provisions of Guardians and Wards Act, will become redundant. Mr. Ali Hyder Salim, learned counsel appearing for the State has supported the argument of learned counsel for petitioner. I have heard learned counsel for parties and have gone through the available record carefully. In my opinion in the cases pertaining to the custody of a child, the courts are not supposed to go into the technicalities of the law and they should decided the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petition is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the Courts could also pass appropriate orders in exercise of its inherited jurisdiction. In his behalf in the judgment relied upon by the learned counsel for petitioner Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir (1987 SCMR 174) and Mst. Khalida Parveen v. Muhammad Sultan Mehmood, PLD 2004 SC

1. Appeal filed before the Hon'ble Supreme Court in both cases, the order of the High Court were challenged before Hon'ble Supreme Court, against that order petitions were declined keeping in view the fact that the parties have parted their ways and the minor is of a tender age. As same situation is in the case in hand where the respondent had divorced the petitioner and the age of the minor is also 21 months therefore, following observation from the reported judgments, I am of the opinion that in the interest of justice as well as for the welfare of the minor Salwa Zehra aged 21 months, the petitioner is entitled to retain her custody. This petition is allowed as a result whereof the custody of the minor Salwa Zehra is handed over to the petitioner Shazia Bano with the observation that parties shall be at liberty to approach the Guardian Judge for redressal of their grievance if any. The Guardian Judge shall deal with the matter independently, if proceedings are instituted before him, in accordance with law without being influenced in any manner from the observation made hereinabove. AG/S-66/K Petition accepted.