2005 PLP 2414 (YLR)

Instant Constitutional petition assailed the order dated 12-4-2005 passed by the learned Additional District Judge Taxila (respondent No.2) whereby petitioner's application under section 491, Cr.P.C. for recovery of her minor daughter (Aniqa Babar) was dismissed.

2. Precisely, relevant facts are that the petitioner was married to Babar Mumtaz Khan and out of this wedlock, three children were borne. Husband of the petitioner died on 18-2-2005 at Karachi. Since all the three children were in the custody of petitioner, she decided to shift to her parent's house on 9-3-2005 when her minor daughter Aniqa Babar of the age of 9 years was allegedly snatched by respondent No.1. Petitioner attempted to regain the custody of her minor daughter but after her failure she filed an application under section 491, Cr.P.C. before the learned Additional District Judge but remained unsuccessful as the same was dismissed on 12-4-2005.

3. Respondents have appeared in response to notice by this Court and are represented through their counsel. Respondents also produced the minor daughter of the petitioner, Aniqa Babar.

4. I have heard the learned counsel for the parties and have examined the record with their assistance. Though the learned Additional District Judge incorrectly concluded that the custody of the respondents Nos. 1 and 2 of petitioner's minor daughter who has not so far attained puberty, petition under section 491, Cr.P.C. was not maintainable yet this jurisdiction being concurrent with this Court, I felt it proper to convert this Constitutional petition into a petition under section 491, Cr.P.C. instead of annulling the impugned order dated 12-4-2005, and remitting the case to the same Court for fresh decision. This Constitution petition is accordingly treated the one, under section 491, Cr.P.C.

5. It is settled law that mother of a minor girl enjoys the right of "Hazanat" till attaining of puberty unless she is disqualified by second marriage or otherwise. In absence of father or any disqualification of the mother, respondents Nos. 1 and 2 who are paternal grand parents of the minor have no right to custody of a minor grand daughter. The petitioner has not contracted second marriage and is not disqualified on any other ground, thus, custody of the respondents will be illegal and improper. Had the petitioner been disqualified, even in that case custody of the. minor girl vests with maternal relations according to the preference given in para.353 of the Mohammedan Law by D.F. Mulla. There is no cavil about the proposition that best nourishing school for a girl is lap of her mother and there is none else better than a mother to train her minor daughter in day to day worldly affairs of life. Aniga Babar is about to enter in a sensible era of her life, and at this juncture the mother's supervision is inevitable for her. Grand parents may have deep love and affection for their grand daughter but they cannot be substituted of a mother. Be that as it may the petitioner cannot be deprived of her right of "Hazanat" and that too, without any just cause or reason.

6. For the reasons noted above, this petition is allowed and custody of minor daughter of the petitioner is ordered to be handed over to the petitioner. Respondents Nos.1 and 2 may if so advised, approach the concerned Guardian Judge for custody of the minor where the matter will be decided on the basis of her welfare. This petition is accordingly disposed of. N.H.Q./A-488/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.