1998 P Cr (PLP)

S. 491

Habeas corpus petition

Custody of detenue

Petitioner, mother of alleged detenue (5/6 years old) who had already filed suit for dissolution of marriage and maintenance against respondent (her husband) had contended that it was her inherent right to keep detenue aged 5/6 years with her till age of majority

Respondent (husband) disputed age of detenue and stated that age of detenue was 10 years and detenue wanted to live with him who wits her real father

High Court having discretion to allow custody of detenue either to petitioner mother or respondent father had enquired from detenue whether she wanted to live with petitioner mother or respondent father

Detenue replied in positive terms without any ambiguity that she wanted to live with , respondent father

High Court in circumstances declined to exercise its discretion in favour of petitioner mother of detenue as petitioner who had already filed suit for dissolution of marriage and maintenance against respondent, had filed petition under 5.491, Cr.P.C. against respondent with mala fide intention-- Petitioner who had alternative remedy under normal law of land was at liberty to file application for custody of detenue before Guardian Judge under the law. Mst. Nasim Akhtar v. Sh. Gulzar Ahmed and 4 others 1995 PCr.LJ Kar. 474; Muhammad Naseer Humayoh v. Mst. Syeda Ummatul Khabir 1987 SCMR 174; Ahmed Jawad Sarwar v. Mst. Zenia 1996 SCMR 1907 and Abdul Rehman Khakwani and others v. Abdul Majid Khakhwani and 2 others 1997 SCMR 1480 ref. G.N. Goher for Petitioner. Samina Qureshi for Respondents: This habeas petition arises out of the facts that petitioner solemnized marriage with respondent No, l and out of the wed-lock Mst. Azra was born. The petitioner's counsel argued that the age of the detenue is 5/6 years. He further stated that petitioner has already filed suits for dissolution of marriage and maintenance which are pending before the Family Court. Liaquatpur. On I 1-6-1997 at 7-00 p.m. respondent No.l by force took the detenue alongwith him. He further stated that petitioner has already submitted application to the Ilaqa Magistrate for the registration of a case who passed the order of tile D.S.P. and the S.H.O. concerned to act strictly in accordance with law but the police officials did not register tire case against the father of the detenue. Hence the present habeas petition.

2. Learned counsel of the petitioner contended that it is the inherent right of the petitioner to keep the detenue with her till the age of majority under Injunction of Islam and he relied upon Mst. Nasim Akhtar v. Sh. Gulzar Ahmed and 4 others 1995 PCr.LJ (Karachi) 474 and Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir 1987 SCMR

174. He further argued that the detenue is of tender age therefore, it is right of the petitioner to keep the detenue with her. 'File learned counsel for the respondent disputed the age of the detenue and sated that the aloe of the detenue is 10 years. He argued that this Court has no Jurisdiction under section 49:, Cr.P.C. or under Article 199 of the Constitution to decide the custody of the minor child of the petitioner and the respondent No.1 It is an inherent right of the competent Court to decide the same after recording the evidence. He relied Upon Ahmed Jawad Sarwar v. Mst. Zenia 1996 SCMR 1907 and Abdul Rehman Khakwani and others v. Abdul Majid Khakwani and others 1997 SCMR 1480.

3. Since it is the discretion of the Court to allow the custody of the detenue either to the petitioner or to respondent No. 1 for the satisfaction of my conscious. I personally enquired from the detenue whether she wants to live with petitioner or respondent No. 1, she replied in positive terms without any ambiguity that she wanted to live with respondent No. 1 i.e., real father of the detenue. The case was adjourned and the police official was directed to keep the detenue away from petitioner and respondent No. 1 then, subsequently the case was called at 2-00 p.m. and I asked particularly from the detenue regarding his own wish to remain with her father or with her mother. She replied positively that she wants to remain with her father. It is admitted fact as narrated by the learned counsel for the petitioner that two suits are already pending before a Family Court for adjudication i.e., maintenance and dissolution of marriage. Keeping in view these circumstances I do not inclined to exercise my discretion in favour of the petitioner as the petitioner tiled this petition mala fide therefore, it did not remain of right and the petitioner has alternative remedy under normal law of the land. Petitioner is at liberty to file application for her custody before Guardian Judge under the law. In case the petitioner files application before a Guardian Judge, then, the learned Guardian Judge shall not be influenced by the above observations and dispose of the same on merits without considering these observations in mind.

4. With these observations his habeas petition is dismissed having no force. H.B.T./N-78/L Petition dismissed