P L D 1968 Lahore 97 (PLP)

Khalid Mahmood for Petitioners. Saeed‑ur‑Rehman Farrukh for Respondent. Nusratullah for the State. Date of hearing: 8th March 1967. This is a petition by Ahmad Nawaz and three others under section 561‑A of the Code of Criminal Procedure to quash proceedings under section 363, P. P. C., pending against him in the Court of the Additional District Magistrate, Montgomery, for having kidnapped his own children Mst. Fatima Nayab (aged 8 years, Mst. Fatima Shahab (aged 6 years), his fourth daughter and Shahzad Masood (aged 3 years).

2. The case is that Mst. Sikandar Sultana was married to Ahmad Nawaz petitioner in 1957 and four daughters and a son were born to her. Then differences arose between them and she resided in Mohallah Tullanwala in the house of the petitioner, whereas the petitioner resided at Karachi, where he is employed. On the 28th of May 1966 Mst. Sikandar Sultana lodged a report at Police Station Sadar Montgomery that on the 17th of May 1966 Ahmad Nawaz petitioner had taken away her three daughters and a son out of her keeping and had thus committed an offence under section 363, P. P. C. After investigation, the police has challaned the petitioner in the Court of the Additional District Magistrate, Montgomery.

3. The proceedings are sought to be quashed on the ground that Ahmad Nawaz petitioner is under the Muhammadan Law legal guardian of the minor children and if he removed them from his house in Montgomery to his residence at Karachi, he did not commit any offence under section 363, P. P. C. in support of the contention that he is legal guardian of the minor children, his learned counsel has relied on Muhammad Sadiq v. Mrs. Sadiq Safoora (P L D 1963 Lah. 534), Muhammad Bashir v. Mst. Ghulam Fatima (P L D 1953 Lah. 73) and Ali Akbar v. Mst. Kaniz Maryam (P L D 1956 Lah. 484). These authorities hold that the father is under the Muhammadan Law legal guardian of his children, though the mother has the right of hizanat. The learned counsel for the petitioners has also referred me to Imambandi and others v. Sh. Haji Mutsaddi (47 I A 513), in which the Judicial Committee of the Privy Council held at page 518 that "it was perfectly clear that under Muhammadan Law the mother is entitled only to the custody of person of a minor child up to a certain age, but she is not the natural guardian; the father alone is a legal guardian." It is, therefore, undeniable that the father minor children is under the Muhammadan Law their legal guardian.

4. Under section 361, P. P. C., whoever takes or entices any minor, under fourteen years of age, if a male, or under sixteen years of age, if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. The Explanation shows that‑the words "lawful guardian" include any person lawfully entrusted with the care or custody of such minor or other person. There is, however, an exception to this section that it does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. The offence of kidnapping is punishable under section 363, but it is contended that the father being the legal guardian of the minor children under Muhammadan Law cannot, in any case, be said to take or entice his own minor children and that even though the mother has the right of hizanat, the guardianship vests in the father, who has constructive custody of his minor children, even though they be in the hizanat of their mother.

5. In a case like the present, what has to be proved by the prosecution is not only that the mother is a lawful guardian of the minor children within the meaning of section 361, P. P. C. and secondly that the children were taken or enticed out of her keeping without her consent, but that the exception has no application. The learned counsel for the petitioners has referred me to the decision in In re Kannegati Chowdarayya and another (A I R 1938 Mad. 656), where by reason of the exception it was held that a person, who is in fact the father of the child, alleged to have been kidnapped by him and, therefore, in law, entitled to the lawful custody of the child, does not come within the scope of section 361." It was also observed that on behalf of the father it could be said that he not merely in good faith believed himself to be entitled to the lawful custody of his child, but that he was beyond the possibility of any challenge entitled to the lawful custody of the child and that, therefore, his act in taking the child from the keeping of his mother could not amount to an offence of kidnapping from lawful guardianship. This was not a case of a Muhammadan, but the principle stated herein is fully applicable to the instant case in view of the above cited decisions of the Privy Council and this Court that the father is the legal guardian of the minor children. The legal guardian has in law constructive custody of the minor children. He can also claim that he bona fide believed himself entitled to their custody and is thus not guilty of kidnapping his own children. The learned counsel appearing for the State referred me to the Commentary of the I. P. C. by Ratan Lal stating that under the Muhammadan Law if the father taken away a son under 7 years, or a daughter under puberty, if Sunni, or under seven years, if Shiah, or an illegitimate child from the custody of the mother, he can be said to kidnap his own child, because the mother is by law the lawful guardian. Under this statement reference is made to Mst. Raj Begum v. Nawab Reza Hossein (1865) 2 W R (Civ. Rul.) 76), Nur Qadir v. Zulaikha Bibi ((1865) 11 Cal. 649), Hamid Ali v. Imtiazan ((1878) 2 All, 71), Idu v. Amiran ((1886) 8 All. 322) Bawa Mahmood Gulzar, 1925 Criminal Revision No. 232 of 1925, decided by Broomfield and Divatia, JJ, on September 9, 1925. The first and the last which is an unreported case are not available for examination. I have examined the available cases relied upon by the learned counsel for the State. In Hamid Ali v. Imtiazan, it was held that divorce having become absolute, and the parties being Sunnis, the husband was not entitled to the custody of his infant daughter until she attains the age of puberty, but this decision related to the custody of the daughter, that is the question of hizanat. In Idu v. Amiran a Muhammadan father had made an application under section 1 of Act IX of 1861 that his two minor children aged 12 and 9 years should be taken from the custody of their mother and handed over to his own custody. It was held that Muhammadan Law takes a more liberal view of a mother's rights with regard to the custody of her children than does the English Law under which the father's title to the custody of his children subsists from the moment of their birth, while under the Muhammadan Law the mother's title to such custody remains till the children attain the age of seven years. In Nur Kadir v. Zuleikha Bibi it was also held that by Muhammadan Law the mother is entitled to the custody of a female minor who has not attained her puberty in preference to her husband. All these are, therefore, cases of hizanat, or right of custody, but on the question of legal guardianship, the above cited decision of the Judicial Committee of the Privy Council and decision of this Court must prevail.

6. The facts of the instant case are that the wife of the petitioner is living in the petitioner's house and is being maintained by him. The minor children, who are alleged to have been kidnapped by him, were also residing in the same house. In the circumstances, he had the constructive custody of his children even though he was himself residing at Karachi, if he has removed them to his own house at Karachi, it can either be out of his love and affections for them, or in order to provide them with better education, comforts and facilities, so a that their removal is for their welfare and not for any immoral or unlawful purpose. It is, therefore, unfortunate that he should have been prosecuted by his wife for a criminal offence on the technical plea that she has the right of their hizanat. It is equally unfortunate that the petitioner and his wife have fallen out, but a Criminal Court is not a proper forum for the mother to obtain custody of her minor children. The petitioner cant take full advantage of the exception and claim, in the circumstances of the case, that he in good faith, believed himself entitled to the lawful custody of the children and in taking them under his own care is not guilty of kidnapping them.

7. I would, therefore, quash the proceedings of the case under section 363, P. P. C., pending against the petitioner, as being an abuse of process of the Court. A.H. Proceedings quashed.