2022 PLP 300 (MLD)

MUHAMMAD TARIQ NADEEM, J.

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner craves recovery and custody of her two daughters namely Maisa Islam Lodhi aged about 5-1/2 years and Eiman Lodhi aged about 19 years.

2. The germane facts necessary for disposal of this petition are that the petitioner and respondent No. 4 are doctor by profession, similarly, husband and wife inter se and out of their wedlock two daughters namely Maisa Islam Lodhi was born on 07.01.2016, whereas, other daughter Eiman Lodhi was born on 25.08.2002. According to the stance of the petitioner about two and half years ago respondent No. 4 went abroad (Saudi Arabia) along with both daughters and subsequently refused to return Pakistan. Further averred by the petitioner that both the daughters have been sent back by respondent No. 4 to Pakistan and now they are in illegal and improper custody of respondents No. 5 who are their paternal grandparents. Further stated that respondent Nos. 5 and 6 are aged persons and have no source of income to maintain the detenues and they are in miserable condition and now respondent No. 4 is trying to remove the two daughters from Pakistan to abroad. Further maintained that both the alleged detenues be got recovered and produced before this Court; thereafter their custody be handed over to the petitioner.

3. In compliance with this Court's Order dated 06.08.2021, the alleged detenues, namely, Maisa Islam Lodhi aged about five and half years and Eiman Lodhi aged about nineteen years have been produced before this Court by the police. Respondent No. 4 (mother of detenues) has also appeared before this Court along with detenues.

4. Contentions heard. File gone through.

5. The important issue in this case which is to be considered by this Court relates to temporary custody of captioned daughters of the petitioner. As laid down in a judgment reported as "Uzma Wahid v. Muhammad Javed Umrao" (1988 PCr.LJ 1883) that according to the Fatawai Alamgiri the mother amongst all persons is the best person entitled to the custody of her minor children during the connubial relationship as well as after its dissolution, and similar is the position as laid down regarding the custody of the minors by the mother in Muhammadan Law, pages 222-223, Edition 1965. It is thus clear that this right belongs to the mother which cannot be taken from her except her own misconduct. Similarly, the tenderness of their ages or the weakness of their sex, renders a mother's care necessary. Mohammdan Law supports the mother's natural right qua the custody of the children and similarly according to the Hanafi doctrine the mother is entitled to the custody of their children until they arrive at puberty.

6. Admittedly respondent No.4 is the mother of the detenues. The marriage between the parties is still intact. It is observed that minor Maisa Islam Lodhi aged about five and half years is of tender age and in this age she definitely needs love and affection of her mother. Moreover, the mother's lap is best divine of God and the same cannot be snatched without any solid and cogent justification. The mother being natural guardian cannot be deprived from the custody of the minor of tender age. As regards, the other detenues namely Eiman Lodhi aged about 19 years, she appears to be adult, major and was not minor and has emotional attachment with her mother. She submits that the petitioner (father) has maltreated her and also not take care of her basic needs. She further submits that her father oftenly ignored her and also tortured her mother. Eiman Lodhi has ardently refused before this Court to accompany with the petitioner (real father). Respondent No. 4 has apprised the Court that the detenues are happily living with her. It is also observed that in case of separation both the detenues will miss the love and affection of each other. Ordinarily a writ petition for the recovery of minors is not found to be competent against mother when there is no element of illegal custody by the mother of his own child. Reliance is placed on the case laws titled as Mst. Nazia Parveen v. SHO and others (2019 YLR 2244), Mst. Tabasum Akhtar v. Sabr Ali alias Taswar Ali and 2 others (2003 MLD 54), Mst. Nadia Parveen v. Mst. Almas Noreen and others (PLD 2012 SC 758) and Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others (2018 SCMR 427).

7. In the light of the statements of the detenues, the petition in hand fails and is accordingly dismissed. If aggrieved, petitioner/father may approach the Guardian Court for permanent custody of the detenues and the Guardian Court shall decide the same in accordance with law. SA/I-16/L Petition dismissed.