2015 PLP 2465 (YLR)

SADIQ HUSSAIN BHATTI, J.-- Through instant petition, the petitioner has assailed the order .dated 10-3-2014, passed by the learned District Judge Karachi (East) in Habeas Corpus Petition No.42/2014, whereby the custody of the minor Saul was given to the respondent No. 1.

2. Facts of, the case, in brief, are that respondent No.1 married with petitioner and out of the wedlock one male-child Saul was born. Subsequently, the marriage between the said parties was dissolved and the custody of the minor was with the petitioner. The respondent No.1 filed the Habeas Corpus Petition under section 491, Cr.P.C. seeking custody of the minor on the ground that the petitioner has remarried and, therefore, she has lost her right of Hizanat. This petition was allowed vide the impugned order and the custody of minor was handed over to respondent No.1, hence the present petition.

3. Learned counsel for the petitioner submitted that while deciding the petition under section 491, Cr.P.C. it is to be seen as to whether detenue is in wrongful custody of any person. Learned counsel further submitted that the question of Hizanat cannot be decided in a petition under section 491, Cr.P.C. and that even after remarrying, the petitioner is still the real mother of the minor and, therefore, the custody minor cannot be termed as illegal or wrongful. Learned counsel vehemently argued that the proper forum to decide the question of custody of the minor as well as his maintenance and welfare is the Guardian and Wards Court. He, therefore, prayed for setting aside the impugned order.

4. On the other hand, learned counsel for the respondent No.1 submitted that the respondent No.1 is the real father of minor and after marriage of the petitioner she lost her right of Hizanat and thus, the learned District judge, Karachi (East) was justified in handing over the custody of the minor to the respondent No.1 for his proper maintenance and education.

5. I have heard the learned counsel for the parties and have gone through the material available on record.

6. When this petition came up for hearing on 19-8-2014, the learned single Judge of this Court suspended the impugned order and handed over the custody of the minor to the petitioner.

7. From perusal of record it reveals that the parties i.e. the petitioner and respondent No.1 dissolved their marriage by consent, vide Separation Deed dated 30-5-2011, wherein nothing in respect of the custody of the minor was mentioned. However, it is not denied that the custody of minor remained with the petitioner after dissolution of her marriage with the respondent No.1. It was only after the petitioner remarried one Hashar Masih, that the respondent No.1 filed Habeas Corpus Petition No.42/2014 which was allowed and the custody of the minor was handed over to him.

8. The powers conferred under section 491, Cr.P.C. empowers the Court to inter alia direct (a) that a person within its appellate, criminal jurisdiction be brought before it to be dealt with according to law and (b) to direct that a person illegally or improperly detained in public or private custody within such limits be set at liberty. The present case does fall in either of two categories as neither the matter pertains to criminal jurisdiction of the Court and the question of custody is to be dealt Guardian and Wards Court, therefore, it would have been appropriate for the learned District Judge to direct the parties to approach the competent Court to decide the issue of custody of the minor. So far as the illegal custody is concerned, it is an admitted position that after separation of the parties, the minor was in legal custody of the petitioner, who is his real mother.

9. Accordingly, I am of the considered view that the respondent No.1 should have approached the Guardian and Wards Court for redressal of his grievance as the question of custody as well as meeting with the ward fallS within the exclusive jurisdiction of the said Court.

10. In view of above, I allow this petition, set aside the impugned order dated 10-3-2014 and direct that any party feels aggrieved, may approach the Guardian and Wards Court for redressal of his/her grievance. Meanwhile, the custody of the minor shall remain with the petitioner and existing meeting arrangement will continue till proper order is passed by a Court having jurisdiction in the matter. SL/M-47/Sindh Petition allowed.