2012 P Cr (PLP)
Dr. SAIMA MALIK — Petitioner Versus CAPITAL CITY POLICE OFFICER, LAHORE and 2 others — Respondents
| Citation | 2012 P Cr (PLP) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Dr. SAIMA MALIK — Petitioner Versus CAPITAL CITY POLICE OFFICER, LAHORE and 2 others — Respondents |
| Primary Law | (a) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2012 P Cr (PLP)?
This judgment primarily cites: (a) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2012 P Cr (PLP)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2012 P Cr (PLP) (Dr. SAIMA MALIK — Petitioner Versus CAPITAL CITY POLICE OFFICER, LAHORE and 2 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Barrister Hassan Dastgir Katchela for Petitioner.
- Hameed Azhar Malik for Respondent No.3.
- 2. The learned counsel for respondent No. 3 has contended that petitioner gave up her right regarding custody of the minor and that the respondent No. 3 has filed an application under section 25 of the Guardians and Wards Act 1890 and the learned Guardian Judge has directed that minor should not be removed/ snatched from the respondent No.3 illegally, forcibly and without due course of law.
- 3. The copy of the agreement deed shows that the minor was given in custody of the petitioner but respondent No. 3 was given right of visitation. He was supposed to take the minor from the residence of the petitioner at 6-00 p.m. on every 1st and 3rd Friday of the month and deliver him back at 6-00 p.m. on Sunday. The minor was admittedly given to respondent No.3 on Friday, the 18th of May, 2012 but he did not return him on 20-5-2012 as per promise. Instead of honouring his commitment, he moved an application under section 25 of Guardians and Wards Act, 1890 on 21-5-2012 and produced the minor before the learned Guardian Judge, who passed an order that the minor be not snatched illegally or per force. The learned counsel for respondent has contended that in view of the fact that the matter is pending before the Guardian Judge, the application under section 491, Cr.P.C. is not maintainable. This argument is misconceived. In suitable cases, this Court can exercise the powers under section 491, Cr.P.C. even during the pendency of the petition before the Guardian Judge. When the minor was living with the respondent No.3 at the relevant time, there was no need for him to file the petition under section 25 of Guardians and Wards Act, 1890. It is thus obvious that he did not approach the learned Guardian Court with clean hands. Instead of returning the minor as per his commitment, he opted to file the petition for custody of the minor although the minor was already with him at that time. The proceedings under section 491, Cr.P.C. cannot be terminated in view of the Order dated 21-5-2012 of the learned Guardian Judge. The petitioner being real mother of the minor has right of Hizanat qua him. The minor is about 5 years old and needs constant love, care and affection of the mother. The respondent had also agreed at the time of divorce that the minor would live with her. In these circumstances, the application is accepted and the minor is given in "Hizanat" of the petitioner. However, the parties will abide by the agreement regarding visitation rights of respondent No.3 unless altered by the learned Guardian Judge.
Headnotes / Summary
S. 491
Guardians and Wards Act (VII of 1890), S. 25
Habeas corpus petition for recovery of minor, pending petition before Guardian Judge for custody of minor
Effect
Agreement between the minor's mother (petitioner) and father (respondent), by which the latter had visitation rights
Father took the minor from his mother and refused to return him and filed an application under S.25 of the Guardians and Wards Act, 1890
Contentions of the mother were that the minor was handed over to the father as per their agreement but he did not return the minor, which was a violation of the agreement ; that the minor was not in proper custody, and that she had the right of "Hizanat" qua the minor
Contentions of the father were that the mother had given up her right regarding custody of the minor, and that the Guardian Judge had directed that the minor should not be removed from the father illegally, forcibly and without due course of law
Perusal of the agreement between the parties showed that the minor was in the custody of the mother but the father was given visitation rights
Father took the minor from his mother's residence and never returned him in violation of the terms of the agreement, and instead moved an application under S.25 of the Guardians and Wards Act, 1890
Contention of the father that since the matter was pending before the Guardian Judge, therefore, present application was not maintainable, was misconceived
When the minor was living with the father at the relevant time, there was no need for him to file the petition before the Guardian Judge, thus it was obvious that he did not approach the Guardian Court with clean hands
Proceedings under S.491, Cr.P.C., could not be terminated in view of the order of the Guardian Judge
Mother had the right of "Hizanat" qua the minor
Minor was about five (5) years old and needed constant love, care and affection of the mother
Father had agreed at the time of divorce with the mother that the minor would live with her
Petition for recovery of child was accepted by High Court in circumstances, and the minor was given in "Hizanat" of the mother
Parties were directed by High Court to abide by the agreement regarding visitation rights of the father, unless varied by the Guardian Judge.
S. 491
Guardians and Wards Act (VII of 1890), S. 25
Habeas corpus petition for recovery of minor, pending petition before Guardian Judge for custody of minor
Effect
High Court, in suitable cases, can exercise the powers under S.491, Cr.P.C., even during the pendency of the [custody] petition before the Guardian Judge.
Judgment & Decree
RAUF AHMAD SHEIKH, J.
Mahad Ahsan has been produced. The learned counsel for the petitioner has contended that under the agreement executed between the petitioner and respondent No.3, the minor was handed over to respondent No.3 on 18-5-2012 but he did not return the minor on 20-5-2012 as per terms of the agreement and promise so the minor is not in proper custody and petitioner being real mother has the right of "Hizanat" qua him.
2. The learned counsel for respondent No. 3 has contended that petitioner gave up her right regarding custody of the minor and that the respondent No. 3 has filed an application under section 25 of the Guardians and Wards Act 1890 and the learned Guardian Judge has directed that minor should not be removed/ snatched from the respondent No.3 illegally, forcibly and without due course of law.
3. The copy of the agreement deed shows that the minor was given in custody of the petitioner but respondent No. 3 was given right of visitation. He was supposed to take the minor from the residence of the petitioner at 6-00 p.m. on every 1st and 3rd Friday of the month and deliver him back at 6-00 p.m. on Sunday. The minor was admittedly given to respondent No.3 on Friday, the 18th of May, 2012 but he did not return him on 20-5-2012 as per promise. Instead of honouring his commitment, he moved an application under section 25 of Guardians and Wards Act, 1890 on 21-5-2012 and produced the minor before the learned Guardian Judge, who passed an order that the minor be not snatched illegally or per force. The learned counsel for respondent has contended that in view of the fact that the matter is pending before the Guardian Judge, the application under section 491, Cr.P.C. is not maintainable. This argument is misconceived. In suitable cases, this Court can exercise the powers under section 491, Cr.P.C. even during the pendency of the petition before the Guardian Judge. When the minor was living with the respondent No.3 at the relevant time, there was no need for him to file the petition under section 25 of Guardians and Wards Act, 1890. It is thus obvious that he did not approach the learned Guardian Court with clean hands. Instead of returning the minor as per his commitment, he opted to file the petition for custody of the minor although the minor was already with him at that time. The proceedings under section 491, Cr.P.C. cannot be terminated in view of the Order dated 21-5-2012 of the learned Guardian Judge. The petitioner being real mother of the minor has right of Hizanat qua him. The minor is about 5 years old and needs constant love, care and affection of the mother. The respondent had also agreed at the time of divorce that the minor would live with her. In these circumstances, the application is accepted and the minor is given in "Hizanat" of the petitioner. However, the parties will abide by the agreement regarding visitation rights of respondent No.3 unless altered by the learned Guardian Judge. M.W.A./S-77/L Bail granted.