1998 P Cr (PLP)

S. 491

Habeas corpus petition

Custody of minor

Order passed is tentative in nature

Order passed under S.491, Cr.P.C. in respect of custody of a minor is always tentative in nature and is meant as a stop-gap arrangement which is subject to the final determination of the question of guardianship or custody by the Guardian Judge. (c) Criminal Procedure Code (V of 1898)

S. 491

Guardians and Wards Act (VIII of 1890), S.25

Custody of minor

Section 491, Cr. P. C. ' is not meant to pre-empt the jurisdiction of the Guardian Court or in any manner to substitute the proceedings to be conducted by the Guardian Judge. (d) Criminal Procedure Code (V of 1898)

S. 491

Custody of minor

Real forum to determine the question of custody of the minor was the Guardian Court established under the Guardians and Wards Act, 1890 where the petition for custody of the minor had already been moved-- Petition under S.441, Cr.P.C. was, therefore, not maintainable and the same was disposed of accordingly. Mst. Nusrat Jehan v. Muhammad Siddiq Khan 1993 PCr.LJ 522; Mst. Nasim Akhtar v. Sh. Gulzar Ahmad 1995 PCr. LJ 474 and Ahmed Sami v. Saadia Ahmed 1990 SCMR 268 ref. Tahir Mahmood for Petitioner. Pirzada Wali Nasim Jafri for Father of Minor. The learned counsel has put up appearance on behalf of the father of minor Perveen Mai. He has produced copy of the petition moved before the learned Guardian Judge, Muzaffargarh wherein the prayer for declaring him as guardian of the minor has been made. Another copy of the plaint has been placed on the file indicating that suit for grant of permanent injunction has been filed against the mother who is petitioner in the instant petition before this Court. As far as the filing of civil suit is concerned the same is not relevant for the purpose of proceedings under section 491, Cr.P.C. However, filing of petition before the Guardian Judge under Guardian and Wards Act seeking a declaration as guardian has an important bearing under section 491, Cr.P.C. It is settled law that jurisdiction under section 491, Cr.P.C. is invoked in cases of emergency when some minor is removed from the custody of a person entitled to her custody and immediately relief is sought to be provided. There is no dispute with the proposition that whatever order is passed under section 491, Cr.P.C. is always tentative in nature and is meant, as a stop-gap arrangement. It is always subject to the final determination of the question of guardianship or custody by 8 the Court of competent jurisdiction which is always a guardian Court. Section 491, Cr.P.C. is not meant to pre-empt the jurisdiction of the guardian Court or in any manner to substitute the proceedings to be conducted by the learned Guardian Judge.

2. Learned counsel for the petitioner, however, has raised two objections. First that according to him section 25 of the Guardian and Wards Act is not attracted to the facts and circumstances of the case because father under Islamic Law is natural guardian of the minor, therefore, there is no need of filing a petition for getting him declared as a guardian and secondly, the custody of the minor girl who is aged about 8/9 years is urgently sought to be delivered to the petitioner who is the mother and according to the principles of Islamic Law the mother has the first right to have the custody/Hizanat of the minor. She can be deprived of her custody only if she is disqualified on the basis of various disqualifications enumerated in the Islamic Law (Muhammadan Law). In support of his contentions the learned counsel has placed reliance on Mst. Nusrat Jehan v. Muhammad Siddiq Khan 1993 PCr.LJ 522 (Karachi), Mst. Nasim Akhtar v. Sh. Gulzar Ahmad 1995 PCr.LJ 474 (Karachi) and Ahmed Sami v. Saadia Ahmed 1990 SCMR 268.

3. I do not want to express any opinion on the submissions made by the learned counsel for the petitioner lest it may prejudice the case of either party. However, it will be open to him to raise any objection including the objections observed above before the learned Guardian Judge who is already seized of the matter. It has been further submitted by the learned counsel for the petitioner that proceedings before the learned Guardian Court are unnecessarily delayed and welfare of minor daughter demands that she should be urgently delivered to the mother. The apprehension is not well-founded because under sections 12 and 25 of the Guardian and Wards Act, Guardian Judge has ample authority to regulate custody of the minor and he has been invested with powers of Magistrate 1st Class in that behalf. Needless to observe that the real forum to determine the question of custody of the minor is the Guardian Court established under the Guardian and Wards Act. As observed earlier, since the petition has D been moved before the Guardian Judge for custody of the minor this petition under section 491, Cr.P.C. is not maintainable. The same is disposed of subject to the above observations. N.H.Q./H-33/L Petition dismissed.