2014 PLP 38 (MLD)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of order dated 20-10-2012 passed by the learned Additional Sessions Judge, Rawalpindi whereby an application filed by her under section 491, Cr.P.C. seeking custody of her minor daughter, namely Miss Ishmal Raheel aged about 5 years was dismissed. It was stated that she was married to respondent No.1 on 15-11-2006 and out of the wedlock, Ishmal Raheel aged about 5 years was born. She alleged that on 3-9-2012, the respondent severely beat and turned her out of the house after snatching the minor. According to her, the minor is under illegal custody and she has been deprived of motherly love and affection and that she filed an earlier application but the local police did not recover the minor due to collusion with the respondent.

2. The learned ASJ dismissed the petition with the observation that the matter was pending before the Guardian Court.

3. The learned counsel for the petitioner has contended that mere pendency of the application before the Guardian Court was no ground to dismiss the petition; that respondent had filed the petition before the learned Guardian Court in order to hamper the disposal of the application under section 491, Cr.P.C.; that the minor is only 5 years old and she needs motherly love and affection; that after institution of writ petition, the respondent has sent first notice of divorce to the petitioner although she is still ready to join hands with him for better future of her daughter.

4. The learned counsel for respondent has vehemently opposed the petition. It is contended that the minor is more closely attached to the mother of respondent No.1 and that she was being properly looked after; that her name was struck off due to her absence from the school; that the respondent was constrained to divorce the petitioner and this fact cannot be taken as a ground for delivery of the custody to the petitioner; that the respondent has filed a petition before the Guardian Court, which issued the injunction to the effect that the minor should not be snatched forcibly and that if the petitioner is interested in obtaining the custody of the minor, she should move an application before the Guardian Court and that the earlier application moved by the petitioner was dismissed by the learned Additional Sessions Judge so this petition is not maintainable.

5. The copy of order dated 2-10-2012 shows that the minor could not be recovered so the petitioner sought permission to withdraw the earlier petition but reserved the right to file fresh petition. The copy of order sheet shows that immediately after removal of the minor from her custody, she filed the first petition. Ad interim injunction granted by learned Civil Judge/Guardian Judge is to the effect that the minor should not be snatched per force so the said order or pendency of the petition under the Guardians and Wards Act, 1890 was no bar on decision of the application under section 491 Cr.P.C. on merits. The provisions of section 491 Cr.P.C. provide efficacious and speedy relief for release of the persons kept under illegal or improper custody. A minor girl aged about 5 years needs constant love, care and affection of the mother. The respondent is a business man and looks after his business during day time so he cannot look after the minor properly. Though the father's mother lives in the same house but she is not a substitute of the real mother. In this tender age, the minor girl can be brought up properly by the mother only and her custody with anyone except the real mother is improper. The learned ASJ erred in disallowing the petition. Such matters should be dealt with parental jurisdiction. This court and the court of Session have concurrent jurisdiction under section 491, Cr.P.C. so instead of remanding the petition at this stage, this court would rather like to decide it on merits. The minor is not in proper custody. The petition is accepted and minor is given in custody of the petitioner who, has right of Hizanat qua her. The respondent may establish his claim regarding custody in the Guardian Court, if so desired/advised. AG/S-21/L Petition accepted.