2006 PLP 231 (MLD)

ABDUL SHAKOOR PARACHA, J.

Petitioner Musarat Waris through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 assails the order, dated 25-4-2005 passed by the learned Additional Sessions Judge, Rawalpindi, whereby, the petitioner's application under section 491, Cr.P.C. for recovery of the minors namely Samita Khan aged 7 years Janita Khan aged 6 years and Muhammad Ashar Khan aged 4-1/2 years was dismissed.

2. The brief facts of the case are that the petitioner was married to respondent No.1 on 18th of December, 1996 and out of the wedlock above named three children were born. A" matrimonial dispute arose between the parties and it was alleged that respondent No.1 along with his mother and sisters (respondents Nos.2 and 3) ill treated the petitioner and also deprived minor children of her proper love and affection and finally the petitioner was turned out of the house of respondent No.1 in April, 2005 by snatching the children. The custody of the minors with the respondents is illegal and improper, therefore, petitioner filed a petition in the nature of habeas corpus under section 491, Cr.P.C. against respondents Nos.1 to 3 for the recovery of her minor children and for the delivery of their custody to the petitioner, but the same was declined to the petitioner, through the impugned order, dated 25-4-2005, hence, this petition.

3. At the outset the learned counsel for the respondents contends that this Court lacks jurisdiction under section 491, Cr.P.C. to hand over the custody of the minors to mother because they are living with the father/respondent No.1, happily, who is the natural guardian of the minors and in the circumstances, the custody of the minors with respondent No.1 cannot be termed as illegal or unlawful. Above, all during the pendency of the petition before the learned Additional Sessions Judge, Rawalpindi, all the minors categorically denied to join the company of their mother/petitioner. Further contends that the petitioner has an alternate remedy of filing a petition under section 25 of the Guardians and Wards Act (VIII of 1890) to have the custody of the minors.

4. On the other hand, the learned counsel for the petitioner on the strength of the case reported as Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852 contends that availability of another legal remedy (under section 25 of the Guardians and Wards Act) (VII of 1890) is no bar and is not a valid ground to refuse the application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by the other person. She contends that Muhammad Ashar Khan, the male child is below the age of 7 years and the rest of the two female children have not attained the age of puberty, therefore, the petitioner-mother, prima facie, is entitled to (Hizanat) for the limited purpose of section 491, C.P.C. therefore, the custody of the aforesaid minors with the respondents be declared as illegal or at least improper.

5. The learned counsel for the respondents, on the other hand, while relying on the case reported as Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 contends that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcible detention arises, such is essentially a matter for Guardians Judge to resolve and no Justification is made out in such a case for issuing a direction in the nature of a writ of habeas corpus. Further relies on the case reported as Sherimati Pari Bai v. Amrat Lal and others 1997 PCr.LJ 105 in support of his arguments.

6. I have heard the arguments of the learned counsel for parties and perused the record with their assistance.

7. In the case reported as Mst. Shaista Naz v. Muhammad Naeem Ahmed and another 2004 SCMR 990 while interpreting sections 17 and 18 of the Guardians and Wards Act (VIII of 1890), the Honourable Supreme Court ruled that in the matter pertaining to the custody of minors of tender ages, High Court is empowered to issue directions in the nature of habeas corpus under section 491, Cr.P.C. if the custody of the minor was improperly disturbed. Section 491, Cr.P.C. provides a more efficacious, speedy and appropriate remedy in the case of illegal or improper custody of the minor and the High Court can pass an order regarding the temporary custody without prejudice to the right of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardians and Wards Court but the remedy under section 491, Cr.P.C. is not available to a person for seeking declaration regarding his suitability for having custody of minor on any ground which is linked with the welfare of the minor. hi the case of Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891 it has been ruled that the matter to be dealt with by section 491, Cr.P.C. and Guardian and Wards Act are entirely different

Provisions are neither mutually exclusive nor one overlaps or destroys the other.

8. In the case reported as Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 the Honourable apex Court ruled that although ordinarily a petition under section 491, Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child, but in the welfare of the child as well as to ensure that the rights conferred upon the child are fully protected in a suitable manner, Court can also pass appropriate orders in exercise of its inherent jurisdiction.

9. In the instant case where the male child is below the age of 7 years namely Muhammad Ashar Khan and the female children namely Samita Khan aged 7 years, Janita Khan aged 6 years have not attained the age of puberty the petitioner would have a right of Khizanat. Under the principles of Mahommedan Law, by D.F. Mulla's the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and her female child until she has attained puberty. The mother can impart love and affection to the minors being of tender age. The statements of the children before the Court regarding the father/respondent No.1, being minors was of no value. Whether the welfare of the minors essentially lies with the mother or the father is yet to be determined by the Guardian Judge, in a petition under section 25 of the Guardians and Wards Act, if filed.

10. At the moment keeping in view the facts and circumstances of the case in hand, I am of the opinion that custody of the minors with the respondent-father, if not illegal, is at least improper, therefore, by accepting this petition, the order dated 25-4-2005, passed by the learned Additional District Judge, Rawalpindi is set aside. The respondents are directed to hand over the custody of the minors to the mother petitioner. Before parting with this judgment it must be noted that if the father-respondent filed a petition under section 25 of the Guardians and Wards Act before the learned Guardian Judge, for custody of the minors that shall be decided of its own, without being influenced by the present order of this Court.

11. On receipt of the application under section 12 of the Guardian and Wards Act, the learned Guardian Judge shall also provide opportunity to the father to meet with the minor children, regularly. In this context the Court shall fix a schedule of meeting of the father with the minors during vacations.

12. With these observations and directions, the instant writ petition stands disposed of. F.M./M-1401/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.