2015 PLP 1765 (YLR)

M. SOHAIL IQBAL BHATTI, J.--Through this habeas petition, the petitioner has invoked the jurisdiction of this Court under section 491, Cr.P.C. for recovery of Mst. Wania Irfan aged about 1 year from the custody of respondents Nos.2 to

7. The respondent No.2 is the real father of the Mst. Wania Irfan. In compliance to the order dated 25-7-2014, the alleged detenue was produced before this Court on 4-8-2014. This Court on the said date handed over the interim/temporary custody of suckling child to the petitioner and the case was adjourned for hearing today i.e. 7-8-2014.

2. The learned counsel appearing on behalf of the respondents argued that the minor child was not snatched by respondent No.2; in fact, the petitioner left the house of respondent No.2 on account of strained relationships and thereafter filed a suit for dissolution of marriage, recovery of dowry articles etc.

3. It has been further submitted by the learned counsel for respondent No.2 that infact the petitioner of her own free will left the house of respondent No.2 when the alleged detenue was 1 or 2 months old and the child is living with her father since 25-9-2013. It has been further argued that the respondent No.2 filed an application under Section 25 of the Guardians and Wards Act and the learned Guardian Judge on 19-7-2014 has restrained the petitioner from illegally snatching the minor from the custody of respondent No.2.

4. The learned counsel for the respondent No.2 had relied upon 2001 SCMR 1782 (Naziha Ghazali v. The State and another) to argue that the custody of minor with his father could not be said to be illegal or unlawful within the meaning of Section 491, Cr.P.C. and since the matter is pending before Guardian Judge, this Court should not pass any order under Section 491, Cr.P.C.

5. I have considered the arguments advanced by the learned counsel for the parties and have perused the record minutely.

6. It is established from the record that the petitioner filed an application under section 491, Cr. P.C. on 18-7-2014 alleging that the alleged detenue was snatched by respondent No.2 on 15-7-2014. The learned Additional Sessions Judge, Multan directed the concerned SHO to produce the detenue before Court on 19-7-2014. On the said date, the counsel appeared on behalf of respondent No.2 and made the statement that the alleged detenue had gone to Islamabad with respondent No.2 and therefore the case was adjourned to 23-7-2014.

7. But on the same date i.e. 19-7-2014, respondent No.2 along with Mst. Wania Irfan appeared before Guardian Judge, Multan and obtained the interim order. This fact establishes the mala fide on part of respondent No.2 as on 19-7-2014 when the alleged detenue was directed to be produced before learned Additional Sessions Judge, the respondent No.2 did not produce the minor child before the learned Additional Sessions Judge while making a misstatement that the alleged detenue is in Islamabad but on the same date, the respondent No.2 along with Mst. Wania Irfan (detenue) appeared before the Guardian Judge, Multan, in the application for appointment of Guardian under Section 25 of the Guardians and Wards Act. Meaning thereby that had minor child been produced before the learned Additional Sessions Judge, he would have been left with no other option but to hand over the custody of a suckling child to her mother. There can hardly be any dispute that while exercising jurisdiction in matters relating to custody of a minor/suckling baby this Court exercises jurisdiction which is mere parental in nature then anything else. It is a legal duty which a Court must perform in order to ensure the well being and welfare of a minor child.

8. At this stage, I would refer to a judgment reported in 2014 MLD 38 (Mst. Saima Bibi v. Raheel Butt and 3 others) where a similar question of law has been dealt with. The mother had filed an application under Section 491, Cr.P.C. which was dismissed by Additional Sessions Judge on the ground that matter was pending before the Guardian Court and interim injunction was granted by the Guardian Judge to the effect that the minor detenue should not be snatched perforce. This Court observed that the order passed by the Guardian Judge or pendency of petition under the Guardians and Wards Act, 1890 was no bar on decision of the application under Section 491, Cr.P.C. on merits. It has been further held by this Court that there can be a no substitute of real mother; minor girl could be brought up properly by the mother only and her custody with anyone except the real mother is improper.

9. I must observe that this Court and the Court of Sessions Judge have concurrent jurisdiction under Section 491, Cr.P.C.; and, High Court while adjudicating upon the matters of custody of minor should deal with the same in its parental jurisdiction.

10. There is no cavil to this proposition that right of Hizanat of a minor girl under the Islamic Law vests with the mother till the girl attains age of puberty. In such case, a strong presumption would arise that it would be in welfare of the minor girl to hand over her custody to the mother under Muslim Personal Law. Lap of the mother is cradle of God having no substitute for it. All the juristic schools of thoughts among the Muslims are unanimous that the right of 'hizanat' primarily and substantially vests in mother up to a certain age. This age limit varies according to different schools. Some maintain that boy is to remain with the mother up to seven years whereas the girl up to nine years. In Egypt and other Middle East countries, the mother has been left to the discretion of the Courts to further extend this period in case of a girl if the welfare and interest of the minor so requires. However, in Indo Pak sub-continent this period is seven years in case of a boy and in case of a girl up to the attaining of puberty.

11. The August Supreme Court of Pakistan in a judgment reported in PLD 2004 SC 1 (Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another) has authoritatively observed that Courts in the cases pertaining to the custody of a child were not supposed to go into the technicalities of law and they should decide the case keeping in view primarily/mainly the welfare of the child. The honourable Supreme Court in a judgment referred above, also discussed the scope of Section 491, Cr.P.C. while observing that ordinarily a petition under Section 491, Cr.P.C. is not competent when there is no element of illegal custody by the father of his own child, but for the welfare of the child as well as to ensure that rights conferred upon the child are fully protected in a suitable manner, Court can pass appropriate orders in exercise of its inherent jurisdiction.

13. In the matters relating to custody of minor of tender age, the paramount consideration for the Court would be the welfare of a minor. In a case reported in 1994 PCr.LJ 715 (Karachi) (Mst. Shabana Niazi v. Muhammad Khalilur Rehman and 2 others) it was observed that if a minor is brought to the Court under section 491, Cr.P.C. he/she has to be dealt with in accordance with law, restoring his/her custody to the mother as the law presumed it to be in his/her interest.

14. For what has been discussed above, it is obvious that deprivation of the mother of the custody of the infant is neither lawful nor proper nor is in the interest of minor aged one year to be kept away from the lap of her mother as there can be no substitute to it. There is logic and wisdom behind the proverb that lap of the mother is a cradle of God. A child remains in womb of a mother for nine months; the mother feeds her child by her own blood when the child is in the womb. Therefore, this petition is allowed and it is directed that the custody of the minor be handed over to her mother. It is clarified that the observations made above would not prejudice or affect the proceedings pending before Guardian Judge. AG/G-54/L Petition allowed.