2016 PLP 1364 (YLR)

KHADIM HUSSAIN M. SHAIKH, J.

Applicant Mst.Khushboo through this application under section 491, Cr.P.C. has sought the following relief:- "a) To issue rule Nisi and direct the respondent No.1 to produce the detenue the minor daughter of the applicant Khadija from the custody of the respondents Nos.2 to 7 before this Honourable Court and this Honourable Court may kindly be pleased to hand over the custody of the detenue to the applicant. b) To grant any other relief as this Honourable Court may deem fit and proper under the circumstances of the case."

2. Learned advocate for the applicant has contended that applicant Mst. Khushboo and respondent No.2 Munawar had contracted marriage about 3-1/2 years back and out of this wedlock a female child namely Khadija, who is now aged of one year and three months and is a suckling baby, was born and referring the deposition of applicant Mst. Khushboo recorded before the learned 1st Additional Sessions Judge-I, Sukkur on 29.8.2015, placed on record, the learned advocate for the applicant has further contended that respondent Munawar compelled applicant Mst. Khushboo to lead immoral life and on her refusal, respondent Munawar maltreated her, that applicant Mst. Khushboo along with her minor daughter namely Khadija leaving the house of her husband, approached SHO P.S.C. Section Sukkur, who produced applicant Mst.Khushboo before the learned 1st Additional Sessions Judge-I Sukkur where she recorded her deposition to the above effect and she chose to go with her mother Mst.Asghari Begum and re-joined her mother, that two weeks prior to filing of the present application, respondent No.2 Munawar had snatched away minor namely baby Khadija from the custody of applicant Mst.Khushboo. The learned advocate for the applicant placing reliance upon the case of Mst.Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 Supreme Court 1) and the case of Muhammad Naseer Humayon v. Mst.Syeda Ummatul Khabir (1987 SCMR 174), prays that the custody of minor female child Khadija may be restored to the applicant, who is her real mother.

3. The learned advocate for respondents Nos.2 and 4 has contended that mother of the applicant was compelling her to lead her immoral life and that she wants to have some monetary benefits. Learned advocate for respondents Nos.6 and 7 adopting arguments advanced by the learned advocate for the respondents No.2 and 4 has further contended that the custody of minor Khadija with her father the respondent No.2 namely Munawar is not illegal and that the custody of the said minor baby Khadija cannot be restored to the applicant Mst.Khushboo.

4. The respondent No.2 Munawar, states that he is doing private job as workman and his normal routine working hours are from 8:00 a.m. to 6:00 p.m.

5. In case of Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir supra High Court's order passed in habeas corpus proceedings under section 491, Cr.P.C. directing the father to hand over the minor girl of less than 4 years to mother was upheld by the Honourable Apex Court. In case of Mst.Khalida Perveen v. Muhammad Sultan Mehmood and another supra the impugned judgment of the High Court Lahore dismissing the application under section 491, Cr.P.C. and declining the custody of minor female child namely Hina Sultan alias Umm-i-Romaan aged about two years from her father Muhammad Sultan to her mother namely Mst.Khalida Perveen, was set-aside and the custody of the minor Hina Sultan alias Umm-i-Romaan was handed over to the petitioner Mst. Khalida Perveen.

6. In the case in hand, the minor baby Khadija is of tender age of less than two years and it needs no reiteration that the minor of such tender age that too a female child would need constant care of her mother and it is a universal truth that there cannot be any substitute for a mother and the lap of mother is God's own cradle for a child.

7. In view of what has been discussed above, I have felt no difficulty in reaching to the conclusion that the custody of minor female child Khadija of such tender age with the father, the respondent Munawar, is improper, if not illegal and that the contention of the learned advocate for the respondents Nos.6 and 7 that the custody of said minor baby Kahdija cannot be restored to the applicant Mst. Khushboo is not tenable. The instant application is, therefore, allowed and the custody of minor female Khadija is handed over to the applicant Mst.Khushboo. However the respondent No.2 Munawar shall be at liberty to avail the remedy before the Guardian Court by filing appropriate proceedings and in establishing his claim for custody of minor Khadija before the Guardian Court and if such proceedings initiated, the same shall be decided expeditiously in accordance with law and merits of the case without being influenced by the observations made hereinabove in this order. SL/K-2/Sindh Petition allowed.