1984 P Cr (PLP)

(2) father's mother, how high soever; (3) full sister; (4) uterine sister; (5) (consanguine sister); (6) full sister's daughter; (7) uterine sister's daughter; (8) (consanguine sister's daughter); (9) maternal-aunt, in like order as sister; and (10) paternal-aunt, also in like order as sisters.

354. Females when disqualified for custody.--A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody (1) if she marries a person not related to the child within the prohibited degrees (Ss.260-261), e.g., a stranger, but the right revives on the dissolution of the marriage by death or divorce; or (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or (3) If she is leading an immoral life, as where she is a prostitute; or (4) if she neglects to take proper care of the child.

355. Right of male paternal relations in default of female relations. In default of the mother and the female relations mentioned in section 353, the custody belongs to the following persons in the order given below;-- (1) the father; (2) nearest paternal grand father; (3) full brother; (4) cosanguine brother; (5) full brother's son; (6) consanguine brother's son;. (7) full brother of the father; (8) consanguine brother of the father; (9) son of father's full brother; and (10) son of father's consanguine brother.

357. Right of father and paternal-male relations to custody of boy over seven and of girl who has attained puberty.--The father is entitled to the custody of a boy over seven years of age and-of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal-relations in the order given in section 355 above, and subject to the proviso to that section. If there be none of these, it is for the Court to appoint a guardian of the person of the minor. (ii) Cr.P.C. Section 491 .--(i) Any High Court may, ' whenever it thinks fit, direct (a) that a person within the limits' of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty. (iii) P.P.C. 361.Kidnapping from guardianship--Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

363. Punishments for kidnapping--Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

9. The examination of the above provisions of law indicate that mother is entitled to Hizanat of her male child below the age of 7 years, failing the mother the relations 1 to 10 given in para. 353 of the Mahomedan Law are entitled to the custody of the minor and that in para.353 the grand father and the paternal-uncle do not figure at all. Since the minor is admittedly below seven years in age, the mother, is therefore, entitled to Hizanat of the minor and the right of the respondents to the custody of the minor has not accrued so far. In these circumstances the custody of the minor by the respondents has to be declared illegal or at least improper. Question (a) as formulated above is answered accordingly. So far as questions (b) and (c) are concerned, in this connection I can do no better than to reproduce the observation made by the Supreme Court in Full Bench judgment titled Muhammad Rafique v. Muhammad Ghafoor PLD 1972 S C

6. At page 8, the Honourable Supreme Court observed:- "The High Court has two-fold jurisdiction under this section (491 Cr.P.C.) (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained. what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not." It is thus obvious that even this Court comes to the conclusion that the minor was not illegally or improperly detained yet since the minor has been brought before, it, therefore, under subsection 491 (1)(a), Cr.P.C. the High Court is quite competent to deal with him by making over the custody of the minor to the guardian. I have already found in para. 9 this judgment that the mother being lawful guardian of the minor entitled to. his custody till such time he attains the age of seven years. It is also well settled that ordinarily the mother is entitled to Hizanat of a minor male child below the age of seven years, and that the presumption is that the welfare of the minor lies in his living with his mother. This presumption is, no doubt, rebuttable but in the case in hand there is nothing to rebut this presumption. Since the minor has been brought before the Court and under section 491 (1)(a), Cr.P.C. has to be dealt with according to law, therefore, in both the eventualities whether he i5, being illegally and improperly detained by the respondents or not this Court is well-within its authority to make over his custody to the mother if the circumstances so warrant.

10. Coming to the contentions raised by the learned counsel for the respondents I find that the contentions raised at Nos. 1 , 2 and 3 require factual inquiry which cannot be made by this Court under section 491, Cr.P.C. Furthermore, a case for the appointment of guardian of the minor having already been filed by the respondents it would be in the fitness of things if the disputed facts are left for the decision of the learned guardian Judge. As for contention No.4, 1 have already held that this Court is quite competent to deal with the minor under section 491 (1)(a), Cr.P.C. as held by the Supreme Court in the case referred to above. I am also of the view that since the remedy provided under section 491, Cr.P.C. is most efficatious and speedy one, therefore, in appropriate cases particularly when the mother is deprived of the custody of the minor child below the age of seven years and she has not contracted second marriage, the writ of Habeas Corpus under section 491, Cr.P.C. would be the most appropriate remedy and the High Court may not stay its hand on the ground that the dispute for the custody of the minor can be well-adjudicated by the guardiance judge. Keeping in view the delay which occurs in disposal of the cases before the subordinate Courts, the possibility that by the time the petition for the appointment of guardian is finally decided the minor might attain majority, cannot be excluded. It would be in the interest of the mother and the minor that this Court may come to their rescue in exercise of its powers under section 491, Cr.P.C. The case-law cited by the learned counsel for the respondents being distinguishable is not applicable to the facts and circumstances of this case. The superior Courts have expressed for and against opinion on the question whether any dispute relating to the custody of a minor child, the High Court can exercise its powers under section 491, Cr.P.C. or not. Each case has, therefore, to be decided on its own facts.

11. On 15th October, 1983 I had asked the minor as to with whom he would-like to live. He desired to live with respondent No.1, the grand father. Despite this I am inclined to make over the custody of the minor to his mother for the reasons (i) that a desire expressed by a minor to live with either of the party is not sufficient by itself to control the question of his custody, (ii) he being below the age of seven years, his consent is immaterial, (iii) that from appearance he is not old enough to form an intelligent preference and that he -remained under the influence of respondent No.1. Resultantly the respondents are directed to make over the custody of Faheem Raza Shah, minor, to Mst. Rizwana Bokhari, the petitioner, in the Court.

12. Before parting with the judgment I would like to add that this order is without prejudice to the orders which may be made by the learned Guardian Judge in petition for the appointment of guardian pending before him. He would pass independent order uninfluenced, by anything said in this judgment. When I announced the order respondent No.1 expressed his apprehension that in order to frustrate the proceedings pending before the learned Guardian Judge for the appointment of the guardian of the minor the petitioner would remove him out of the jurisdiction of the Guardian Judge and the appellate jurisdiction of the Lahore High Court. On this Nazar Hussain Shah, the maternal-grandfather of the minor showed his inclination to furnish security in the sum of Rs.2,00,000 to the effect that minor would be produced before the learned Guardian Judge as and when required. He also undertakes that he would arrange the meeting of the minor with the respondents once a week at the residence of Din Muhammad Shah, Councillor Ward No.1, Bahawalpur. S. G. D. Order accordingly.