1993 P Cr (PLP)

Syed Ashfaq Rizvan for Respondent No.l. K.M. Nadeem, AA.-G. for, the State. Date of hearing: 29th June, 1992. This application under section 491, Cr.P.C. was moved on behalf of applicant Mst, Nusrat Jehan daughter of Habib Ahmed for the recovery and custody of detenue Norin Muhammad Siddiq aged 10 years.

2. The applicant was married to the respondent No.1 and out of this wedlock the detenue Norin Muhammad Siddiq and Imran Khan aged about 12 years were born. The applicant had not separated from respondent No.1 but since about 9 years back, she was living with her parents who were maintaining her alongwith her two children.

3. It is alleged that on 22-5-1992 respondent No.l had forcibly snatched away baby Norin from the lawful custody of the applicant and since then he is keeping her in wrongful confinement as alleged by the applicant. Pursuant to the order, dated 10-6-1992 rule nisi was issued for the recovery of baby Norin. The same was executed by Police Station Korangi with the result baby Norin was secured and produced in Court. Again by order, dated 17-6-1992 the temporary custody of baby Norin was given to the applicant Mst. Nusrat Jehan while the matter was fixed for further hearing today.

4. I have heard Mr. Muhammad Ismail Memon, learned counsel for the applicant and Mr. Syed Ashfaq Rizvi, learned counsel for respondent No.l and Mr. K.M. Nadeem. learned A.A.-G. for the State. Mr. Ismail as well as Mr. Nadeem have unanimously argued that custody of the minor in proceedings under section 491, Cr.P.C. invariably is given to the mother on account of right of Hizanat. Reliance is placed in the case reported in 1990 P Cr. L J 342 in which my learned brother Oaisar Ahmed Hamidi, Judge has exhaustively dealt with the provisions of section 491, Cr.P.C Relevant portion is reproduced as under:-- "

10. Admittedly the alleged detenu is aged about seven months. He was secured from the house of respondents after rule nisi was issued. The respondents have not controverted the allegation of applicant to the effect that the custody of detenu was forcibly taken from her and she was compelled to leave the house of respondents. The parties are Shia Muslim and the marriage between them is still subsisting. According to the personal law of the parties the applicant is entitled to the custody of detenue till he attains the age of two years. There cannot be any substitute for a mother. As observed in Mst. Khalida Begum v. Muhammad Altaf reported in 1983 C L C 678, `mother's lap is God's own cradle for a child and as between the father and mother, other things being equal, a child in the circumstances of a given case should remain with the mother."

5. While following the above authority I am also of the view that under the personal law of the parties the applicant is entitled to the custody of the detenue till she attains puberty.

6. Accordingly I direct that the custody of the baby Norin, who was handed over to the applicant on 17-6-1992 under the orders of the Court shall remain with the applicant subject to any decision made by the Guardian Judge/Family Court, Karachi. The application stands disposed of. N.H.Q./N-450/K Order accordingly.