2007 PLP 1242 (MLD)

Laws Cited

Representation

• Muhammad Akram Qureshi for Respondents Nos. 1 and 2.
• 3. The learned counsel for petitioner has argued that the law is very much clear on the point and has quoted section 354 of Muhammadan Law, wherein it is mentioned that a female could only be dis-entitled to the custody of her minor child if she remarries or goes and resides at a distant place or it' she leads an immoral life or she neglects to take proper care of the child. The learned counsel has relied upon the cases of Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 Mst. Samina v. Ishfaque Hussain and anther (2000 MLD 351), Mst. Kaniz Fatima v. Shaukat Hussain and others (1998 MLD 1996) and Mst. Shaishta Naz v. Muhammad Haeem Ahmad (2004 SCMR 990). It is further contended by the learned counsel that Fee Card of Jinah Public School, Qazi Abad, Rawalpindi has been fabricated just to oust the territorial jurisdiction of learned Sessions Judge at Khushab; that the minor is not studying in that School and in this regard two affidavits of Muhammad Bashir and Malik Shahadat Hussain have been produced.
• 4. On the other hand, the learned counsel for respondents Nos. 1 and 2 have contended that the petitioner is suffering from a skin disease, which may be dangerous for the minor. A medical prescription by Dr. Muhammad Sajid Aheer, dated 10-7-2005 has been placed to record. It is further contended that the petition before the learned Sessions Judge, Khushab was dismissed for want of jurisdiction and the petitioner has a remedy to approach the Court of Guardian Judge for the relief prayed for, therefore, this petition is not maintainable. The learned counsel has relied upon the cases of Mst. Tasneem Fatima v. Arshad Mehmood and another (2005 YLR 883), Smt. Faiz Ahsan v. Syed Ahsan Raza Khan (2005 YLR 1614), Mst. Pari Bai v. Ararat Lal and others (1997 PCr.LJ 105) and Asif Mowjee v. Mst. Fatima A. Nowjee and another (PLD 1987 Karachi 239).
• 5. Admittedly, Naqeeb Zohra, alleged detenue, is minor daughter of petitioner and she is five years of age. The petitioner is entitled to retain the custody of minor being her real mother in preference to respondents Nos. 1 and 2. Uptill now she has not lost her preferential right for the custody of minor. So far as medical prescription and territorial jurisdiction is concerned that can be looked while holding a factual inquiry by the Guardian Court. This Court is not to go into deeper controversies. Reliance in this respect may be placed on the cases of Mst. Khalida Parveen and Mst. Samina, referred above, wherein Hon'ble Supreme Court has held that the real mother is entitled to the custody of minor having a preferential right. The cases referred by the learned counsel for respondents relate to jurisdiction of Guardian Judge and not of this Court under section 491, Cr.P.C. In the circumstances, Mst. Naqeeb Zohra, minor, is handed over to the petitioner, her real mother. The respondents may approach to the Guardian Judge for the custody of minor, if so desired. However, they are allowed to meet the minor at the house of petitioner on every Sunday after fifteen days.

Headnotes / Summary

Judgment & Decree