1991 P Cr (PLP)

(1) Safia Bibi v. Ghulam Hussain Shah P L D 1970 Azad J&K 13, (2) Gulzar Khurshid Ahmad v. Sajjad Akbar :1977 P Cr. L J 800, (3) Gullan v. Allah Ditta 1984 P Cr. L J 1047, (4) Rizwana Bokhari v. Abdul Majeed Shah 1984 P Cr. L J 2582, (5) Sakina Bibi v. Muhammad Aslam 1987 P Cr. L J 377 (6) Muhammad Naseer Humayun v. Syeda Ummatul Khabir 1987 S C M R 174, (7) Uzma Vahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883, (8) Muhammad Javed Umrao v. Uzma Vahid 1988 S C M R 1891, (9) Shabbir Hussain v. Shehnaz Parveen 1989 P Cr. L J 1689, (10) Fauzia Jamil v. Syed Farhat Hussain Shah Bokhari 1989 P Cr. L J 1736, (11) Bachal Mai v. Allah Ditta 1990 P Cr. L J 93, (12) Tauqir Fatima v. Iqbal Mehdi Shah 1990 P Cr. L J 342, (13) Mussarat Jabeen v. Dr. Khalid Nawab 1990 P Cr. L J 686, (14) Aasia v. Mashhud Ahmad 1990 P Cr. L J 847 and (15) An unreported judgment of Mr. Justice Allahdino G. Memon of the Sindh High Court in Criminal Miscellaneous No.308 of 1989. Crux of all the abovereferred judgments by and large is that ordinarily, the disputes as to the custody of the minors are to be determined by the Guardian Court/Family Courts but this Court can also interfere in exercise of jurisdiction vesting in it under section 491, Cr.P.C. to order restoration of custody of a minor child where it is illegally and improperly disturbed and that any such order is of course, without prejudice to the rights of the parties to have the matter of custody finally determined by the Guardian Court. Learned counsel has also referred to two judgments from foreign jurisdiction-one of Supreme Court of India reported in 1989 M L D 2209 and the other of the Court of appeal in England In re: H (Infants) (1966) 1 All. E.R. 886 for the proposition that the conduct of a person taking a child from the custody of a person to whom it had been entrusted by the Court (though of a foreign country) is most reprehensible and that a Judge Should pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so will seriously harm the interest of the child.

9. Learned counsel appearing for the respondent has argued that the respondent being the father of the minor is his natural Guardian. His custody of the minor cannot, therefore, be said to be illegal or improper so as to attract the jurisdiction of this Court under section 491, Cr.P.C. According to the learned counsel, an application under section 491, Cr.P.C. is maintainable only where custody of the minor is found to be illegal and emergent relief is necessary in the interest of the minor. Learned counsel has contended that the petitioner can well take recourse to the Guardian Court where the question of custody of the child can be determined more satisfactorily. Learned counsel has submitted that it is not correct that the respondent snatched the minor Salman Mir from the petitioner. The fact of the matter, according to the learned counsel. is that the petitioner left the respondent's house stealthily and took along the elder child with her leaving behind the minor Salman Mir of her own accord. Respondent's custody of the minor cannot thus be dubbed as illegal. Learned counsel for the respondent has also vehemently contended that if the custody of the minor is delivered to the petitioner, she will definitely take him away to England where it would not be possible for the respondent to exercise any control over the minor which is his right being a natural guardian. Proceeding on these premises, learned counsel has argued that the petitioner is thereby disqualified to have the custody of the minor. Reference in this connection is made to para 354 of the Principles of Muhammadan Law by D.F. Mulla which in relevant aspect states that a `female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody, if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence'. Learned counsel has also placed reliance on:-- (1) Muhammad Bashir v. Ghulam Fatima P L D 1953 Lah. 73, (2) Ali Akbar v. Kaniz Maryam P L D 1956 Lah. 484 and (3) Chiragh Bibi v. Khadim Hussain P L D 1967 Lah.

382. In the first judgment, it was held that `though the mother has a right to Hizanat, the father is the natural guardian and entitled to exercise control and supervision over the child and if the mother removed the child to a place where father is unable to exercise his control the mother loses her right to custody'. In the second case, it was held that where the minor is over 7 years of age, the right of custody under Muslim Law belongs to the father and that in the absence of evidence to the contrary it should be presumed that the welfare of a minor lies in such minor being handed over to a relation entitled to his custody under Muslim Law. In the last mentioned case of Chiragh Bibi v. Khadim Hussain (supra) it was laid down that if a woman who has the Hizanat of a child denies the father of the child, who is under Muslim Law his or her natural guardian, access to the child, she must be considered to have done something injurious to the mental and emotional well -being of the child. In such an event, custody is to be restored to the father. Learned counsel for the respondent has pointed out that both the minors are greatly attached to the respondent and more so Salman Mir who has been with him eversince the petitioner left him behind in December 1990. That being so, learned counsel has contended that if the custody of minor was now handed over to the petitioner, the minor will be highly disturbed mentally and emotionally. As regards the judgment of the High Court of England (Annexure `C') learned counsel has submitted that it is without jurisdiction as the minor Salman Mir was not within the jurisdiction of that Court when the judgment in question was delivered. Even otherwise, the said judgment is not conclusive in view of the provisions of section 13, C.P.C. as it was rendered in disregard of the Pakistan Law on the subject.

10. I have considered the submissions made by the learned counsel for the parties. It is an admitted position that the petitioner is the mother and the respondent is the father of the minor Salman Mir who is below 7 years of age. It is also not in dispute that according to Muslim -Law, mother is entitled to the custody (Hizanat) of her male child until he completes the age of 7 years unless she marries second husband or she otherwise loses the right of custody for some other reasons as are mentioned in para. 354 of D.F. Mulla's . treatise on Muhammadan Law. That being so, the petitioner is legally entitled to the custody of the minor and was so entitled when the respondent in December, 1989, held back the minor with him. Allegation of the petitioner is that the minor Salman Mir was forcibly snatched away from her by respondent and his mother. This allegation though denied by the respondent, prima facie appears to be correct because there is no reason forthcoming as to why the petitioner should have left the minor Salman Mir with the respondent and taken the other child alongwith her. Respondent no doubt is the natural guardian of the minor being his father but he cannot hold and retain his custody forcibly and against the wishes of the petitioner who in law is entitled to the custody of the minor or without obtaining proper orders for the custody of the minor from a Court of competent jurisdiction. It is not the case of the respondent that he has obtained any such order. In fact he has not even moved the Guardian Judge/Family Court for securing the custody of the minor Salman Mir though he is stated to have made an application under section 25 of the Guardians and Wards Act for the custody of the other child i.e. Zeeshan Mir. He is evidently holding the custody of the minor against the wishes of the petitioner. In the circumstances, his custody, prima facie, appears to be illegal. Refer P L D 1970 Azad J&K 13 and 1984 P Cr. L J 2582. In the first case, father had taken away the minor children from their mother who because of the ages of the minors was in law entitled to their custody. It was held that `where a person is legally entitled to the custody of a child, the detention of the child by any other person is illegal'. In the second case, it was observed that since the minor son was admittedly below 7 years of age, his mother was entitled to the Hizanat of the minor and the right of the respondents grandfather and paternal-uncle, had not yet accrued. In the circumstances, it was held that `the custody of the minor by the respondents has to be declared illegal or at least improper'. In the present case, the respondent has also been holding/retaining custody of the minor Salman Mir in defiance of the judgment of the High Court of England aforementioned whereby he was directed to hand over the custody of the said minor to the petitioner. Argument of the learned counsel appearing for the respondent that the judgment in question was without jurisdiction has not impressed me because under section 14, C.P.C., a presumption is raised with regard to the competency of the foreign Court. Even otherwise, it is borne out from the record that the respondent remained associated with the proceedings culminating in final judgment. He was admittedly represented by the counsel. That being so, the respondent should have either challenged the judgment in question in appropriate proceedings to have it set aside or, in all fairness, ought to have honoured it by complying with the directions contained therein. Viewed from this angle also, the respondent's custody of the minor can be said to be improper if not wholly illegal. Law is fairly well-settled that where a father obtains custody of his minor child without having recourse to law, his custody will be illegal and in such a case this court is competent to exercise jurisdiction under section 491, Cr.P.C and to order restoration of the custody to the mother. Refer 1984 PCr.LJ 1047, 1984 PCr.LJ 2582, 1987 PCr.LJ 377, 1988 P Cr. I.J 1883, y. 9 89 P Cr. L J 1689, 1990 P Cr. L J 686 and 1990 P Cr. L J 847.

11. Even if it be assumed for the sake of argument that the respondent s custody of the minor child was not illegal or improper yet since the minor has been brought before this Court he can be dealt with according to law under section 491 (1) (a) Cr.P.C which provides Any High Court may whenever it thinks fit direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the court to be dealt with according to law According to the dictum of the supreme court recorded in Muhammad Rafiq v. Muhammad Ghafoor PLD 1972 SC 6 if the person brought up before the high court is a minor the court may make over his custody to the guardian which will be dealing with him in accordance with law Relevant observation of the supreme court is produced hereunder "The High Court has two-fold jurisdiction under this section (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not.

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12. As already noted above, it is well-settled that according to the Muslim law, mother is entitled to the custody of a male minor child until he has completed the age of 7 years and the law also presumes that the welfare of the minor lies in his living with the mother. Nothing has been brought on the present record to rebut this presumption. In the circumstances since the minor has been brought before the Court and under section 491(1)(a), Cr.P.C. he has to be dealt with according to law, restoring his custody to his mother the petitioner, which the law presumes to be in his interest will be dealing with him in accordance with law. Thus, viewed from whatever angle i.e. whether the respondent's custody is illegal and improper or not, it is competent for this Court to hand aver the custody of the minor to the petitioner and in my view, in the facts and circumstances of this case highlighted hereinabove, particularly the fact that the mother has remained deprived of the custody for about a year and half, it is an appropriate case where the custody of the minor be restored to the petitioner. It has been so ordered accordingly. It is, of course, open to the respondent to initiate proceedings for custody of the minor before the Guardian Judge/Family Court who will decide the matter in accordance with law uninfluenced by anything said in this judgment.

13. Learned counsel appearing for the respondent as also the respondent himself expressed an apprehension during the course of hearing that in case the custody is handed over to the petitioner, she will take away the minor to England thereby depriving the respondent of his control and supervision over the minor which as an natural guardian he has a right to exercise and it might also frustrate the custody proceedings which the respondent may initiate before the Guardian Judge/Family. Court. In order to allay the apprehension of the respondent and to safeguard his interest it has been directed in the short order produced hereinabove that the petitioner or some other person shall furnish a security in the sum of Rs.10,00,000 (Rupees ten lac) to the satisfaction of the Additional Registrar of this Court to the effect that the minor shall not be removed out of Pakistan except with the prior permission of this Court and that in the event of the respondent moving a petition under section 25 of the Guardians and Wards Act, the minor would be produced before the Guardian Judge as and when required.

14. For the reasons stated above, this petition stands accepted with the directions contained in the short order reproduced in para. 1 of this judgment. H.B.T./I-289/L Petition accepted.