2017 PLP 279 (YLRN)

ZAFAR AHMED RAJPUT, J.

This Constitutional Petition, under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 read with Section 491-A, Criminal Procedure Code, 1898, is directed against the order dated 09.01.2015 passed by the learned Sessions Judge Karachi (South) whereby the application filed under section 491, Cr. P.C. by the petitioner/ applicant for the custody of minor Muhammad Shayan, aged about 13 months, was dismissed.

2. Brief facts of the case, as narrated in the memo of petition, are that Mst. Kiran Bibi (petitioner)was married with Junaid Ahmed (respondent No.1) at Karachi on 09.11.2012 and from the said wedlock Muhammad Shayan was born on 19.12.2013; that the petitioner and respondent No. 1 remained together as husband and wife till-second" week of April 2014 and thereafter, respondent No.1 expelled the petitioner from house along with said minor without any reason and justification; therefore, the petitioner took shelter with minor her parents' house; that after some days the respondent No.1 came to petitioner and took away the minor with him on the pretext to buy some articles for him, the petitioner who, was willing to rejoin respondent No.1, handed over the minor, but he did not come back and after that on approaching the elders of respondent No.1 the custody of the minor was returned to the petitioner; that thereafter, on 27.06.2014 respondent No.1 came at the house of petitioner's parents along with 3 /4 person and took away the custody of the minor illegally and unlawfully; that the father of the petitioner again approached to the elders of respondent No.1, namely, Haji Zarastab and Hassan Khan for settlement of dispute between the petitioner and respondent No.1 regarding the custody of the minor, who called the respondent No.1 and asked him to hand over the minor to petitioner but he refused them and then on 24.10.2014 he pronounced divorce to the petitioner. The petitioner; thereafter, filed an application under. Section 491, Cr.P.C. being Criminal Miscellaneous Application No.1855 of 2014 before the learned Sessions Judge, Karachi (South) for the recovery of minor/detenue from the custody of respondent No. 1 which was dismissed by the learned Sessions Judge vide order dated 09.01.2015 directing the petitioner to approach the Family Court under the provisions of Guardians and Wards Act, 1890. Being aggrieved to and dissatisfied with the said order, the petitioner has preferred this Constitutional Petition.

3. I have heard the learned counsel for the parties and perused the material available on record.

4. Mr. Muhammad Akbar, learned counsel for the petitioner, has mainly contended that the impugned order is unjust and illegal, as the same has been passed by the learned Sessions Judge, without taking into consideration welfare of the minor and the rights which have been conferred upon the minor suckling child of tender age. In this regard he has referred the case of Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1). He has further contended that the minor is in illegal and unlawful custody of respondent No.1 since the day he was snatched away by the respondent No.1 and he is now at the mercy of his step-mother, as respondent No.1 has contracted second marriage with respondent No.2. He has also contended that under Muhammadan Law, the mother has right to have the custody of minor boy till the age of 7 years and in the instant case it is an admitted position that the age of the minor is 13 months only, as such the petitioner being mother is entitled for his custody. In support of his contentions, learned counsel has relied upon the case of Hussan Begum v. 1st Additional District and Sessions Judge, Karachi West and 3 others (2003 PCr.LJ 1503) and Mst. Shazia Bano v. Government of Sindh through Secretary, Home Department, Karachi and 6 others (2014 YLR 152).

5. On the other hand, Mr. Waqar Ahmed Abbasi, learned counsel for respondent No.1, while supporting the impugned order, has raised objection on the maintainability of the instant petition. Referring clause (b) of subsection (1) of Section 491 Cr.P.C., learned counsel has emphasized that the petition is only maintainable in the case when a person or minor illegally or improperly detained but in the instant case respondent No.1 has the custody of the minor being his father and natural guardian, which is neither illegal or improper nor it was snatched away by him but the petitioner had herself left the minor at the house of respondent No.1 while leaving his house. Relying upon the case of Muhammad Sadiq Butt v. Mst. Khalida Parveen (PLD 1967 Karachi 645), learned counsel has averred that respondent No.1 is taking full care of the minor and in a case where the father is alive and has not been found to be a person unfit to be the guardian of his minor children he must be regarded as the natural guardian. He has further averred that the matter of custody of minor child can be brought before a High Court under section 491, Cr. P.C. only if the child is of very tender age and he has quite recently been snatched away from lawful custody and there is a real urgency in the matter and also that in such a case the High Court may only regulate interim custody of the child leaving the matter of final custody to be determined by a Guardian Court. In this regard, the learned counsel has relied upon the case of Mst. Nadia Parveen v. Mst. Almas Naureen and others (PLD 2012 SC 758) and Rabia Noor v. Shahzad Shah and 8 others (2014 MLD 1333). Lastly, the learned Counsel has maintained that the petitioner has alternate and efficacious remedy under Guardians and Wards Act, 1890, before the Family Court concerned, where she can raise her grievances. He has, however, admitted that respondent No.1 has solemnized second marriage with respondent No.2.

6. I have given my due consideration to the contentions raised by the learned counsel for the parties.

7. As regard the scope of Section 491, Cr.P.C., it is now well-settled that in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for decision mainly taking into consideration welfare of the child. 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 which have been conferred upon the child are fully protected in a suitable manner, the Court could also pass appropriate order in exercise of its inherited jurisdiction. Reliance in this regard may be placed in the case of Mst. Khalida Parveen (supra).

8. In the instant case it is an admitted position that the petitioner is the mother and respondent No.1 is the father of the minor, who is only 13 months old. It is also an admitted position that respondent No.1 has solemnized second marriage with respondent No.2. According to Muslim Law, mother is entitled to the custody (Hizanat) of her male child until he completes the age of 7 years or she otherwise loses the right of custody for some other reasons as enumerated in paragraphs 352 and 354 of D.F. Mulla's Principles of Muhammadan Law. Right of Hizanat can be enforced against the father or any other person. Father no doubt is the natural guardian of the minor but he cannot hold and detain the custody of minor child under 7 years of age forcibly and against the wishes of the mother, who in law is entitled to the custody of the minor, or without obtaining proper orders for the custody of the minor from the Court of competent jurisdiction. It is not the case of respondent No.1 that he has obtained any such order. 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. Reliance in this regard may placed in the case of Safia Bibi v. Ghulam Hussain Shah (PLD 1970 Azad J&K 13), wherein 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 is illegal". In the case of Mst. Tayyaba Khan v. Syeda Begum and another (PLD 1994 Karachi 204) so also in the cases of Hassan Begum and Mst. Shazia Bono (supra) it has been held that the mother being legally entitled to the custody of her minor son till the age of 07 years, the custody of the minor with father having been demanded by the mother could not be considered as legal. In the said cases custody of the minors, who were present in Court with their fathers, were directed to be handed over to their mothers immediately, with direction that the parties can agitate the question of custody before the Family/ Guardian Court. Thus, relying on the ratio of the above judgments, I, hold that in the instant case the custody of minor Muhammad Shayan, aged about 13 months, with respondent No.1 (father) is illegal and improper.

9. The case-law cited by the learned counsel for the respondent No.1 is distinguishable so far the facts of the case in hand are concerned. In the case of Mst. Nadia Perveen and Rabia Noor (supra) the custody of the minor children was declined to mother by the Apex Court and this Court, respectively holding that the minors being, 8 to 12 years old were neither of very tender ages nor had they been snatched away from lawful custody of their mother. While, in the instant case as discussed above, a minor aged 13 months is in illegal/improper custody of his father and his mother claims her right of custody (Hizanat).

10. For the foregoing facts and reasons, this petition is allowed and as a result whereof the impugned order is set-aside. Respondent No. 1 is directed to hand over the custody of minor Muhammad Shayan to the petitioner. However, the respondent No.1 shall be at liberty to approach the Family/Guardian Court for redressal of his grievances, if any. The Guardian Judge shall deal with the matter independently, if proceedings are 'instituted before him in accordance with law without being influenced in any manner from the observations made hereinabove. Pending application stands disposed being infructuous. ZC/K-3/Sindh Petition allowed.