1974 PLP 96 (SCMR)

Nemo for Respondents. Date of hearing: 4th July 1973. MUHAMMAD GUL, J.‑This petition for special leave is from the revisional order of a learned Single Judge of the Lahore High Court maintaining that of Guardian Judge under section 12 of the Guardians and Wards Act, 1890, entrusting the custody ad interim of an infant Kashif ur‑Rehman aged about eight months, to his mother Mst. Shahida Parveen, respondent No. 1, in an application made by her, under section 25 of the Act for the custody of the minor. The petitioners 1 and 2 herein who were respondents before the Guardian Judge, respectively are father and paternal grandmother of the infant. It appears that respondent No. 1 because of estrangement with her husband petitioner No. 1, is living with her mother and step‑father (respondents Nos. 2 and 3 herein). Petitioner No. 1 moved a petition in the High Court habeas corpus under section 491, Cr. P. C. for the release of his wife (respondent No. 1) and his infant son from the illegal custody of respondents Nos. 2 and 3 (her mother and step‑father). Respondent No. 1 appeared before the learned Single Judge to repudiate the allegation about her illegal custody by her mother and step‑father, The learned Single Judge therefore rejected the application for habeas corpus so far it concerned petitioner No. 1 but directed that the custody of the infant be given to petitioner No.

1. The learned Judge, however observed that the respondent No. 1, if she so desired, could move the Guardian Judge for the custody of the infant. The order is dated the 25th November 1972. Pursuant to the above observation respondent No. 1 moved the Guardian Judge on 8‑12‑1972 under section 25 of the Guardians and Wards Act for the custody of the infant. She also applied under section 12 for the interim custody on the ground that the infant was a suckling and unless his custody was immediately transferred to her his life would be in danger. The Guardian Judge allowed the prayer against which the petitioners herein moved a revision in the High Court which was dismissed vide dated 28‑3‑1973. Learned counsel for the petitioner submits in support of this leave petition, that the petitioner No. 1 being the father was natural guardian of the infant and therefore was entitled in law to hizanat of the infant even against his mother unless he is found to be disqualified in any respect, It was also submitted that the petitioner No. 2, who is maternal grandmother of the infant and who had developed an intense fondness for the infant, will be able to look after the infant. Having regard to the tender age of the infant, we consider there is no reason to interfere with the order of the High Court maintaining that of the Guardian Judge,, for the interim custody of the infant more so when the main matter is to be decided under section 25 of the Act. The petition is accordingly dismissed. Petition dismissed,