1995 P Cr (PLP)

This application under section 491, Cr.P.C. was filed by petitioner Shehnaz Bibi who had submitted therein that she was divorced by her husband respondent No. l Muhammad Akram, on 25‑9‑1994 and that her female child, namely Mst. Rani, aged 1‑1/2 years, was forcibly snatched by respondent No. l. She has also contended that some thumb‑impressions of the petitioner were procured on plain papers by the respondent No. l. The respondent No. l has appeared in compliance with the Court's direction alongwith the minor Rani.

3. Learned counsel for the respondents has presented a compromise executed on Rs.5 stamp paper, which is in the form of an‑affidavit allegedly executed by the petitioner to the effect that she has been divorced by her husband respondent No. l on 25‑9‑1994 in compliance with the decision of the Punchayat and that she has no objection to the said Talaq. It is further stated in this affidavit that the petitioner has surrendered custody of minor Rani of her own accord and with her own consent to respondent No. l Muhammad Akram. It is further stated in the alleged affidavit that the petitioner shall not approach any forum or Court to seek return of her minor daughter Rani.

4. The petitioner when confronted with the said affidavit, has repudiated the same. She denies under oath that she had executed this document. She 1 states that the minor was taken from her on the pretext of visiting the paternal‑ grandparents and was not returned to her

5. I have heard the learned counsel for the parties and I have also examined the document, which purports to be executed in compliance of some decision of Punchayat, in which the brother of the petitioner had represented the petitioner as her representative. The decision of the Punchayat includes divorce 'of the present petitioner by respondent No. l and divorce by brother of the petitioner Ghulam Mustafa to sister of respondent No. l and in consideration of the two divorces, the custody of minor Rani to be handed over to respondent No. l and his sister since the sister of respondent No. l is issueless. Needless to say that the alleged compromise/affidavit entered into by the petitioner is an unconscionable agreement on the fact of it. No mother C would voluntarily surrender her suckling baby. The petitioner also states that I she did not seek the divorce herself.

6. In Hawa v. Muhammad Yousaf P L D 1969 Kar. 324 it was held that the doctrine that governs transactions entered into by Pardanashin or illiterate women is that mere execution by such a person although unaccompanied by duress, protest or obvious signs of misunderstanding is in itself no real proof of a true understanding in the mind of the executants. The onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by the disposer herself. The party taking advantage must show to the Court that the deed was explained and understood by the executants and she adopted it with full knowledge and comprehension.

7. In Tahera Begum v. Saleem Ahmad Siddiqui P L D 1970 Kar. 619 it was held that custody of minors cannot be settled by private compromise or even arbitration. An agreement between the parties in this respect is not enforceable although it could be evidence of abandonment of child by one of the parents. Mother to avoid lengthy litigation for getting divorce agreeing to let minor girl aged 3‑1/2 years to remain in custody of father. It was held that mother, in circumstances, did not abandon child.

8. It has been held by the Supreme Court of Pakistan in Ghulam Ali v. Ghulam Sarwar Naqvi (Mst.) P L D 1990 SC 1 that the law offers special protection to women on questions of public policy, morality, lack of consideration and undue influence. If the relinquishment by a female is against public policy and morality, the female cannot opt or contract out of this protection.

9. If an agreement is entered into by a female which appears unconscionable on the face of it, there is a rebuttable presumption that the agreement was entered into by coercion and undue influence. No effective rebuttal is forthcoming to show as to why the petitioner would voluntarily part I with her minor daughter Rani who appears to be not more than 1‑1; 2 years of 1E age. Prima facie, she is entitled to custody of the child and this child is entitled as a child to be in the custody of her mother.

10. In view of the above facts and circumstances, this habeas corpus petition is accepted and custody of the minor, namely Rani, is restored to her 1F mother, the petitioner.

11. This order shall not stand in the way of the Guardian Judge; if respondent No. l moves for the custody of the minor and such application, if moved, shall be decided in accordance with law uninfluenced by any observation made by this Court. N.H.Q./S‑542/L Petition accepted.