1990 P Cr (PLP)

This application under section 491, Cr.P.C. raises an important point of law about the powers of High Court under this section in relation to the custody of minors, who are residing with their natural guardian, viz. father.

2. Applicant Mst. Mussarat Jabeen was married to Dr. Khalid Nawab, somewhere in the year 1985. Out of this wed‑lock, detenu Misbah Nawab, aged about three years and Sana Nawab, aged about two years were born. The relations between the parties were not cordial and it is the case of applicant that she was left unattended after the delivery of Sana Nawab in hospital when she was suffering from jaundice, and she had to take refuge in the house of her parents and during this stay of about two years she has been deprived of the custody of her minor son and daughter. Having no other efficacious remedy, the applicant has approached this Court for the recovery of her son Misbah Nawab and daughter Sana Nawab.

3. The proceedings by way of habeas corpus are proceedings calling upon a person having custody of another person to produce him and demonstrate under what authority he holds him in custody. If the authority is legitimate, the High Court cannot interfere. As observed in Manzoor Hussain and another v. Manzoor Hussain, reported in P L D 1974 Lah. 202, by Muhammad Afzal Zulla, J. (as he then was), proceedings of habeas corpus, by their nature and purpose are summary in character. Controversies are not tried nor entire evidence is recorded under ordinary sustentative and procedural laws, civil or criminal. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention.

4. The invocation of jurisdiction under section 491, Cr.P.C. for the custody of children is again a matter of sharp controversy. While examining a petition of this nature in Najma Sadique Rasool v. Munira Hamid Rasool and another reported in 1973 P Cr. L J 98, Imdadally Agha, J. (as he then was) observed as follows: "The present petition is also concerning the custody of a child. The learned Advocate‑General has cited in support of his argument the case of Adnan Afzal v. Captain Sher Afzal P L D 1969 SC 187, wherein it has been held that as from the 5th of April, 1966, when Judges of the Family Courts became vested with powers of Magistrate of First Class, the only Court which has jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule was the Family Court. This decision of the Supreme Court clinches the whole issue, therefore, in this matter the present petition under section; 491, Cr.P.C. does not lie as the remedy to the petitioner is to approach the Family Court for the purpose of obtaining custody of the child concerned."

5. This view was followed in Mukhtaran v. Muhammad Anwar etc. reported in 1979 P Cr. L J Note 15 at p.96 wherein it was observed: "Where the mother and the father are in dispute over their marital affairs and the custody of the minor aged 2 to 3 years is involved, the proceedings in the nature of habeas corpus are not at all suited to the occasion for any Court which is called upon to deal with a minor or its very custody exercises a parental jurisdiction which requires that it should act for the welfare of the minor. The parties can thrash out their own differences elsewhere as to their claim to the custody of the child, but so far as the regulation or alternation in the custody of the minor is concerned it can take place only under the laws governing the custody of the minor and whether his custody of the minor has been obtained legally or illegally properly or improperly against written agreement or in conformity with it is not a question of concern. I do not think in the circumstances the custody of the father can be called so illegal as to require interference by resort to habeas corpus. The proper course for the petitioner or any one who is interested more in the welfare of the minor is to move the Guardian Judge and to demonstrate there that it: is in the interest of the minor that the custody should remain with a particular person."

6. In the case of Mst. Aisha Bibi v. Nazir and 2 others reported in 1981 S C M R 301, it was held by the Supreme Court that where the dispute between the parties was essentially regarding the custody of a girl then it was essentially a matter for the Guardian Judge to decide.

7. A contrary view is, however, taken in Begum Gulzar v. Sajjad Akbar 1977 P Cr. L J 800, Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir 1987 S C M R 174, Rana Khurshid Ahmad v. Ashiq Risaldar and another 1988 P Cr. L J 1111, Uzma Wahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883, Muhammad Javed Umrao v. Mst. Uzma Wahid 1988 S C M R 1891 and Shabbir _ Hussain v. Mst. Shaheen Parveen and another 1989 P Cr. L J 1689. The ratio of the above authorities is that in matters pertaining to the custody of minors of tender age the High Court has got jurisdiction under section 491, Cr.P.C. which g remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by Guardian Judge.

8. It will be manifestly clear that the matters to be dealt with by section 491, Cr.P.C. and Guardians and Wards Act, 1890 are entirely different and the provisions are nether mutually exclusive nor one overlaps or destroys the other. 1988 S C M R 1891 Ordinarily the disputes as to guardianship should he decided by a Court under the Guardians and Wards Act, 1890, as that is the ordinary remedy for deciding such disputes, but in exceptional cases High Court can C interfere to order restoration of custody which has been disturbed iliegallv or improperly. This was in fact the view taken by me in the case of Mst. Shamshad Begum v. Muhammad Saad Bin Mogham and another reported in 1989 P Cr. L J 1327, which gets supports from cases reported as Asif Mowjee v. Mst. Fatema A. Mmvjee and another P L D 1987 Kar 239, and Fauria Jamil v Syed Farhat Hussain Shah Bokhari and another 1989 P Cr. L J 1736.

9. As observed in Muhammad Rafique v. Muhammad Ghafoor reported in P L D 1972 SC 6, the High Court has two‑fold jurisdiction under section 491, Cr.P.C. (i) to deal with a, person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not.

10. Admittedly the parties arc Sunni Muslims and the marriage between them is still subsisting. According to the personal law of the parties the applicant is entitled to the custody of Mishah Nawab till he attains the age of seven years, F and of Sana Nawab till she attains the age of puberty. The applicant seems to be anxious to have reunion with her husband Dr. Khalid Nawab. Her letter, dated 22‑11‑1988 (R.3), which the respondent No.1, liar himself produced demonstrates her desire to live with him in no uncertain terms. I cannot do better than to quote the relevant extract, which reads as follows:

11. The respondent No.l met this proposal with a bare denial (R.4). The circumstances, which constitute the background of this litigation are indicative that the applicant is anxious to have the custody of her son and daughter and she F was compelled to live in the house of her parents. The fact that she left her ailing child in the hospital is to be judged in the above context

12. There cannot be any substitute for a mother and as observed in the case of Mst. Khalida Begum v. Muhammad Altaf reported in 1983 C L C 678, mother's lap is `God's own cradle for a child and as between the father and the mother other things being equal, a child in the circumstances of a given case should remain with the mother'

13. Having regard to the above circumstances, I direct that the custody of both Mishah Nawab and Sana Nawab be delivered to applicant by respondent No.l, before the Registrar of this Court on 25‑9‑1989 at 10 a.m. It will, however, G he open to respondent No.1, to seek remedy before competent Court, if lie is able to make out a case for forfeiture of Hizanat against applicant. It is needless to point out that the observations made in this judgment should not influence the mind of Guardian Judge, if such matter comes to him at any time. A.A./M‑987/K Order accordingly.