2004 PLP 990 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred seeking leave to appeal against the judgment dated 13-6-2002 passed by a learned Single Judge of High Court of Sindh, Karachi, in an application (Criminal Miscellaneous Appeal No.24 of 2002) under section 491, Cr.P.C.

2. The relevant facts in small compass, giving rise to this petition are that petitioner was married with Muhammad Naeem, respondent herein, on 15-2-1998 at Karachi and out of the wedlock, the minor child namely Master Muhammad Shah Noor, now about the age of three years, was born. Unfortunately, the marriage between the parties failed and at the time of dissolution of marriage the petitioner was allowed to retain the custody of minor through an amicable settlement. Later, when petitioner contracted second marriage with one Naveed, the respondent moved an application under section 491, Cr.P.C. in the High Court of Sindh, Karachi, for custody of the minor. The learned Single Judge in the High Court allowed the application mainly on the ground that the petitioner on contracting second marriage lost her right of Hizanat and was no more entitled to retain the custody of minor and directed for delivery of custody to the respondent with the observation that the petitioner, if so desired, may approach the Guardians and Wards Court concerned for custody of the minor. The learned Judge, however, allowed the petitioner and her mother for the meeting with the minor once a week.

3. Learned counsel for the petitioner has submitted that since the marriage was dissolved by the respondent in departure to the requirement of section 7 of Muslim Family Laws Ordinance 196,1, therefore, the petitioner moved an application to the Chairman of the concerned Union Council for grant of necessary permission to contract second marriage whereupon the respondent in connivance with Naib Nazim of the Union Council extended threats to the petitioner for forcible removal of the child from her custody. The petitioner, therefore, approached the High Court for interference and protection and in consequence thereto the respondent while invoking the jurisdiction of High Court under section 491, Cr.P.C. sought custody of the minor. In nutshell, the learned counsel for the petitioner has contended with vehemence that the custody of minor with the petitioner was neither improper nor illegal to attract the provisions of section 491, Cr.P.C.

4. Learned counsel appearing on behalf of the respondent has contended that the petitioner on contracting second marriage lost her right of retaining the custody of the minor and further the custody of minor with the petitioner in the house of a stranger would be improper and illegal.

5. There is no cavil to the proposition that in the matters pertaining to the custody of minors of tender age, the High Court is empowered to issue directions in the nature of habeas corpus under section 491, Cr.P.C. if the custody of the minor was illegally or improperly disturbed. Section 491, Cr.P.C. provides a more efficacious, speedy and appropriate remedy in a case of illegal or improper custody of minor and the High Court can pass an order regarding the, temporary custody without prejudice to the rights of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardians and Wards Court but the remedy under section 491, Cr.P.C. is riot available to a person for seeking declaration regarding his suitability for having custody of minor on any ground which is linked with the welfare of minor. The jurisdiction of High Court under section 491, Cr.P.C. can only be invoked, in a case of illegal and improper custody and not for any other consideration including the welfare of the minor. The right of Hizanat having the force of an injunction of Islam is an accepted principle of Islamic Law and a female on re-marriage may be disqualified to exercise this right but a mother on account of re-marriage is not absolutely disqualified to be entrusted the custody of a minor child' rather on contracting second marriage she may lose only the preferential right of the custody. The High Court in exercise of its power under section 491, Cr.P.C. undoubtedly can restore the custody of a minor as an interim measure to the person entitled to it if the child is found in illegal or improper custody but a party seeking custody of a minor child claiming preferential right or on any other ground relating to the welfare of minor, should approach the Guardians and Wards Court which is the proper forum for determination of such dispute in the light of evidence of the parties. This is recognized principle that the question of custody cannot be determined solely by deduction from a rule of law rather it is decided through a detailed scrutiny and judicial discretion in the circumstances of each case and the High Court in its limited jurisdiction under section 491, Cr.P.C. cannot undertake such an exercise rather, at .the time of passing an order should only consider as to whether the custody of minor was improper and illegal or not. There can be no denying the fact that there can be no substitute for the mother for a minor child especially of tender age, as no one else including the father, can give motherly love and affection to a child, therefore, the consideration for the grant or refusal of custody of such a minor child even, as an interim measure, should not be solely confined to the rights A of parents rather the interest of minor should be given preference and if the minor is not in illegal or improper custody, the dispute relating to the custody either temporary or permanent, between the parents, should be allowed to be decided by a Court established under Guardians and Wards Act, 1890 and the High Court, only in exceptional circumstances, should pass a summary order relating to the custody of a minor child under section 491, Cr.P.C. if it has been disturbed illegally or improperly. In the present case, the minor at the time of filing an application under section 491, Cr.P.C. was in lawful custody of mother and was not in improper or illegal custody 'of any person, therefore, in the given circumstances, the custody of child with mother, despite of her contracting second marriage, should not be disturbed through a summary order under section 491, Cr.P.C. The petitioner before contracting second marriage was entitled to retain the custody of minor in exercise, of her right of Hizanat and on re-marriage despite losing this preferential right of custody she, could still be entrusted and allowed such custody in the welfare of minor as neither she would lose absolute right of custody of minor nor respondent on her re-marriage would ipso facto become entitled to the custody of child. The High Court in the given situation instead of disturbing the custody of minor with the petitioner under section 491, Cr.P.C. should have directed the respondent to approach the Guardian Judge for the relief being sought from the High Court as at the time of passing of the impugned order, the minor was not in illegal or improper custody.

6. We, for the foregoing reasons, Vwhile converting this petition into appeal, allow the same and set aside the judgment impugned. The respondent, on direction of Court, has restored the custody of minor in Court to the petitioner and if he so desired, may invoke the jurisdiction of the Court concerned under Guardians and Wards Act, 1890. M.B.A./S-239/S Appeal allowed.