1997 P Cr (PLP)

Petitioner Mst. Yasmeen Qamar was married to respondent Khaliqu uzzaman in the year 1985 and this wedlock had produced 3 children, namely (1) Baby Sobia, (2) Master Ehsan Zaman and (3) Master Mohsin Zaman.

2. Relations between the spouses were not happy from the beginning and ultimately they culminated in divorce, when the respondent Khaliquzzaman divorced Yaseem Qamar on 10th of August, 1994. Contention of Mst. Yasmeen Qamar is that Khaliquzzaman forced her out of the house alongwith the two children, namely, Baby Sobia and Master Mohsin Zaman while he kept with himself Master Ehsan aged 4 years. Contention of Khaliquzzaman is that at the time of leaving the house on being divorced, Mst. Yasmeen took away with herself Baby Sobia and Master Mohsin Zaman, and left behind Master Ehsan, of her own free-will. The petitioner thereafter filed this Criminal Miscellaneous on 5-10-1994 in this Court praying that the custody of Master Ehsan Zaman aged 4 years be restored to her as she has a right of Hizanat and that the minor is of a tender age. Respondent in defence has stated that he has already filed an application under section 25 of the Guardians and Wards- Act, 1890 in the Court of Senior Civil Judge No.IV, Karachi (Central) for the custody of the remaining two children also. The respondent further stated that he was the father and natural guardian of minor Ehsan Zaman, and that Master Ehsan was living in perfect harmony in his company in his house. Learned counsel for the petitioner Mr. Badar Muneer has argued that the powers of this Court under section 491, Cr.P.C. may be exercised to restore the custody of Master Ehsan to the petitioner, who is the mother of the petitioner as there is serious dispute between the petitioner and the respondent. The learned counsel appearing for the respondent Khaliquzzaman raised a point that the custody of Master Ehsan with the respondent Khaliquzzaman was not illegal, and it has also not been stated that petitioner was deprived of the custody of the minor by the respondent by any illegal act and that the custody with the respondent was not unlawful. Therefore, the provisions of section 491, Cr.P.C. in this case were not called for and no action was necessary and that the petitioner could prove that she was better suited to have the custody of the minor in a Guardian Court and if the Guardian Court came to the conclusion that the welfare of the minor required the change of custody from the father to the mother, she could take the custody after such adjudication. Under provisions of section 491, Cr.P.C. this Court can issue directions in the nature of habeas corpus if it appears to it that a person is illegally or improperly detained in private or public custody. If such person is brought before the Court, the High Court has two-fold option, firstly, to deal with such person within its appellate jurisdiction according to law; and secondly, to set him at liberty if he was illegally or improperly detained. Where the person is a minor, the Court would resort to first option, i.e. dealing with him in accordance with law. Where the person was a major the only jurisdiction which the Court could exercise was to set him at liberty. In this case, the minor has been brought before the Court by the respondent, who is keeping his custody. The minor appears to be a boy of hardly 4 years of age. The petitioner and the respondent were asked by the Court to settle their dispute in respect of the custody of the minor amicably and for that purpose the learned counsel of both the parties also made efforts, but the parties could not come to an amicable settlement in respect of the custody of Master Ehsan Zaman. The petitioner desires that the Court should pass an order regarding the custody of the minor. The petitioner's claim is that she is the mother having the right of Hizanat, therefore, the custody from the respondent may be taken over and the minor be given to her, whereas the respondent wants that the custody should continue with the respondent till the matter is referred to the Guardians and Wards Court, which Court should decide the issue of welfare of the minor between the parties. No doubt this Court has extraordinary power under section 491, Cr.P.C. in the nature of habeas corpus to issue the directions but the proceedings by their nature are summary in character. The cases of Mst.. Sabira Sultana v. Zafarullah Khan, reported in 1992 PCr.LJ 2150 (Karachi) and Mst. Zubeda Khatoon alias Aqleema Khatoon alias Perveen v. Saadullah A. Siddiqui and 4 others, reported in 1992 PCr.LJ 690 are important decisions of this Court. In these cases, it has been held by this Court that disputes as to guardianship should ordinarily be decided by a Court under the Guardians and Wards Act, 1890, as that is the normal remedy for deciding such dispute but in exceptional cases the High Court can interfere to order restoration of custody which has been disturbed illegally or improperly. The right of Hizanat of the mother provides that she has a right to keep the custody of the minor up to a certain age limit i.e.. 7 years in case of a male child and reaching the age of puberty in case of a female child. That the custody with the mother under the Hizanat is subordinate to the care of the father. In this case the applicant Yasmeen Qamar before the divorce, was having the custody of the minor and when she was divorced, her right of Hizanat over the custody of the minor children did not come to an end. She wanted to be in custody of all the three children but one of the minors was detained by the father. The petitioner without loss of time has approached this Court that she has right of Hizanat and that the custody of Master Ahsan Zaman aged 4 years be also awarded to her as he is improperly detained by the respondent. The respondent being a father cannot be said to be having the custody of the minor in illegal way, but at least the way he has withheld the custody of this minor from the applicant could be called an improper way. The awarding of custody under provisions of section 491, Cr.P.C. is always subject to the regulation of the custody by the Guardian Court, therefore, I feel it proper to order that custody of Master Ahsan Zaman may be given over to the petitioner by respondent subject to its regulation by a Guardian Court. For that purpose respondent is at liberty to seek a decision from a Guardian Court and it is directed that the Guardian Court shall give priority to decide the case of the minor when referred by the respondent. The petitioner is directed to furnish security to the satisfaction of the Nazir of this Court within 2 weeks in the sum of Rs.25,000 in addition to the personal bond of the petitioner that she shall neither change the address nor remove the minor from her present address where she is living, for a period of two years from the date of this order or the decision of the Guardian Court in respect of custody of Master Ahsan Zaman, between the petitioner and the respondent if the decision takes place earlier to a period of 2 years. N.H.Q./Y-74/K Petition allowed.