2006 PLP 1756 (MLD)
Mst. MISBAH SADDIQUE — Petitioner Versus S.H.O. and 3 others — Respondents
| Citation | 2006 PLP 1756 (MLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Mst. MISBAH SADDIQUE — Petitioner Versus S.H.O. and 3 others — Respondents |
| Primary Law | Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2006 PLP 1756 (MLD)?
This judgment primarily cites: Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2006 PLP 1756 (MLD)?
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: 2006 PLP 1756 (MLD) (Mst. MISBAH SADDIQUE — Petitioner Versus S.H.O. and 3 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Sarwar Awan for Petitioner.
- Miss Rashida Bokhari and Sajid Chaudhry for Respondents Nos. 2 to 4.
Headnotes / Summary
S. 491
Petition for custody of minor
Respondents had contended that petitioner/mother of minor girl having contracted second marriage with person not falling within prohibitory degree, she had lost her right of Hizanat
Female minor was in the custody of her paternal grand mother
Plea of petitioner was that if. she had lost her right of Hizanat by contracting marriage with a person outside prohibited degree, the right of Hizanat of female child automatically transferred to maternal grand mother--Validity-Held, in such-like cases question of preference between maternal grandmother and paternal grandmother with regard to the custody of female minor, could not be determined in summary proceedings, but as welfare of minor was main consideration, evidence, was required in that respect
Petition was disposed of accordingly and question regarding determination of entitlement to have custody of female minor between two grandmothers was' left for determination by the Guardian Judge.
Judgment & Decree
MUHAM'MAD JEHANGIR ARSHAD, J.
Pursuant to this Court's order, dated 14-7-2006 Muhammad Akram S.-I. has produced the respondents along with Areeba Arshad, minor daughter of the petitioner.
2. It is submitted by learned counsel for the respondents that the petitioner has contracted second marriage with a person not falling within a prohibited degree, therefore, she has lost her right of Hizanat in terms of para. 354 of Mohammedan Law by D.F. Mulla and the female minor is now in the custody of her paternal grandmother. Petitioner's second husband is also present in Court and admits that he has no relation with the minor within the prohibited degree.
3. At this stage, it has been argued by learned counsel for the petitioner that maternal grandmother of the minor is present in Court and in the event of petitioner having lost her right of Hizanat by contracting marriage with 'a person outside prohibited degree the right of Hizanat of female child automatically transfers to the maternal grandmother in terms of para 353 of the Mohammedan Law by Mulla and thus she is entitled to get custody of the minor.
4. So far as legal proposition as canvassed by learned counsel for the petitioner that when mother loses her right of Hizanat of a female baby, the said right transfer to the maternal grandmother, is concerned, there is no cavil to the same. However, in such-like cases the question of preference between maternal grandmother and paternal grandmother with regard to the custody of the female minor cannot be determined in summary proceedings like the present one under section 491, Cr.P.C., as same requires evidence with regard to the welfare of the minor which is the supreme consideration for deciding such-like matters as held by the Hon'ble Supreme Court of Pakistan in "Mst. Firdous Iqbal v. Shifaat Ali and others" (2000 SCMR 838) and "Sardar Hussain and others v. Mst. Parveen Umer and others" (PLD 2004 SC 357). This petition is disposed of accordingly and the question regarding determination of entitlement to have custody of the female minor between two grandmothers is left for determination by the learned Guardian Judge, in case either of the party opts to approach the said Court. H.B.T./M-454/L Order accordingly.