P L D 2004 Karachi 488 (PLP)

Ashfaque Hussain for the Applicant. Akhtar Hussain for Respondent No.1. Mst. Akhtar Rehana for the State. Dates of hearing: 14th, 22nd July, 2003, 10th and 12th April, 2004. The brief facts of the matter per the Applicant are that she was married to the respondent No.1 in February, 1998 according to the Nikahnama on the record (Annexure A/5). However due to differences between the parties the respondent No.1 pronounced divorce upon the Applicant vide such Deed dated 4-9-2000 (Annex. A/6) and on the same day an agreement (Annex A/8) was also entered into between the parties whereby their son Shahzeb was given into the custody of the Applicant by the Respondent No.1. Concurrently visitation rights with Shahzeb were reserved for the respondent No.1. It is the case of the Applicant that on the same day viz. 4-9-2000 another agreement was allegedly entered into between the parties (Annex. A/7) whereby custody of the child was given to respondent No.1 by the applicant. According to the applicant, this agreement was executed by her against her will. It is the further case of the applicant that on 23-3-2003 the respondent No.1 forcibly snatched the minor with the help of her father. Thereafter, the applicant's father turned her out of the family house and she accordingly entered into marriage with another person Muhammad Maroof. Then the respondent No.1 refused to allow the applicant to see the minor at all whereupon she filed Cr. Misc. Petition 7 of 2003 before the learned Sessions Judge Karachi (Central) praying for the custody of the minor which was dismissed and hence the present revision application.

2. In support of this application learned counsel for the applicant has submitted that under section 491, Cr.P.C., the learned District Judge was only empowered to appreciate whether or not a person had been detained unlawfully. Such an enquiry per learned counsel was of a summary nature and where the Court was satisfied that the detention was unlawful it should in the case of a minor give custody into the hands of the lawful guardian or in the case of a major set him her free. Consequently, controversies set up by the parties could not be taken account while exercising such jurisdiction. Per learned counsel the learned District Judge has failed to exercise the jurisdiction conferred upon him tinder section 491, Cr.P.C. since per the impugned order purportedly the petitioner had admitted before him that she had voluntarily surrendered the custody of the minor to the respondent No.1. Hence, learned counsel has submitted that as admittedly the minor was only three years and six months of age at that time the applicant was the natural guardian and hence she should have been given custody. In support of this submission learned counsel has relied upon Nisar Muhammad v. Sultan Zari PLD 1997 SC 852, Yasmeen Qamar v. Khaleequzzaman 1997 PCr.LJ 581 and Naushabah Tabassum v. Ghulam Madni Shah 1987 PCr.LJ 1318.

3. On the other hand, Mr. Asghar Hussain learned counsel for the respondent No.1 has submitted that the applicant had coerced the Respondent No.1 into marriage with her knowing full well that he was already married and had six children. Thereafter, the applicant gave birth to a baby boy viz. the minor and. some time later left the Respondent No.1's house to live with her parents and ultimately forced the Respondent No.1 to divorce her on 4-9-2000. She agreed to retain custody of the minor for two years also vide written agreement of the same date whereafter the Respondent No.1 would have the custody. Thereafter, the Applicant married another person and gave the custody of the minor to the Respondent No.1. hence, she is demanding the custody from the Respondent No.1 unlawfully. Learned counsel has fully supported the impugned judgment according to which the Learned District Judge had satisfied himself that the custody of the minor had been voluntarily delivered to the Respondent No. 1 by the applicant and hence had refused to give the custody to the later. In support of his submission learned counsel has relied upon Naziha Ghazali v. The State 2001 SCMR 1782; Mst. Irfatta Shaheen v. Abid Waheed PLD 2002 Lah. 283, Muhammad Raliazali v. Federation of Pakistan 2001 MLD 1608 aid Farzana Sarwar v. The State 2001 YLR 1803.

4. Ms. Akhtar Rehana, Advocate for the State, has supported the submissions of Mr. Asghar Hussain for respondent No. 1.

5. I have heard both the learned counsel at length and hence with their consent the matter is being disposed off finally. My conclusions are as under:

6. It would be seen that the jurisdiction of this Court under section 491, Cr.P.C. is of a summary nature and hence factual controversies cannot be explored. It is for this reason that such jurisdiction is to be used sparingly in guardianship matters as the plenary jurisdiction would rest with the Guardians and Wards Judge. However, in appropriate cases where it is prima facie established that the custody A of a minor was removed unlawfully by either the husband or the wife, then certainly relief can be given under the provisions of section 491, Cr.P.C. it would also be seen that in such matters the right of guardianship (hizanat) under Islamic Law cannot be equated to lawful custody which is a matter of fact. Consequently, it would be seen that in the cases where the superior Courts have intervened in order to exercise jurisdiction under section 491, Cr.P.C. it was shown factually before them that custody was unlawful. In this respect reference can be made to Nisar Muhammad v. Sultan Zari (supra) wherein the Hon'ble Supreme Court came to the conclusion that the Petitioner had forcibly thrown out the respondent from his house without allowing the latter to take with her the minor children. The Hon'ble Supreme Court held that as the right of Hizanat was still with the Respondent the children being under the age of seven years the lawful custody belonged to her and hence the minors were restored to her. A similar conclusion was reached in the case of Yasmin Qamar v. Khaleequzzaman (supra) by this Court and Mst. Naushaba Tabassum v. Ghulam Madni Shah (supra) by the Lahore High Court. However, where on facts it was established before the Court that lawful custody was with the person from whom the minor was sought to be removed, the superior Courts have declined to exercise jurisdiction under section 491,Cr.P.C. Such as by the Hon'ble Supreme Court in the case of Naziha Ghazali v. The State (supra) and by this Court in the case of Farzana Sarwar v. The State (supra).

7. In the present case, I am of the opinion that prima facie that the custody of the minor with the Respondent No. 1 was not unlawful since it was the applicant herself who gave the custody to him which is borne out by the impugned order as well. Such a conclusion is also borne out from the fact that although per the applicant the minor's custody was forcibly taken away from her on 23-3-2003. It was only on 8-5-2003 that Cr. Misc. No.7/2003 was filed before the learned District and Sessions Judge, Karachi (Central). There is no explanation at all as to the intervening period and it appears that not even a police report was filed by the applicant. In the circumstances, this Application is dismissed: The applicant would be free to approach the- Guardians and Wards Judge to obtain custody of the minor in accordance with law. N.H.Q./F-10/K Application dismissed.