Habeas corpus petition

Petitioner filed a petition for the recovery of his daughter from the alleged illegal and unlawful custody of private respondent

Detenue had been produced by SHO of concerned Police Station in pursuance of a direction issued by the Court

Detenue stated that she contracted marriage with private respondent, who was also her real cousin with her free and sweet will

Detenue denied to go with her father/petitioner

Seemingly the alleged detenue was a grown up girl and FIR in the relevant police station had been chalked out and in furtherance of the same, investigation was underway

Categorical stance of the alleged detenue was that neither she was in any kind of confinement nor under any restraint; she added that she was happily living with her husband (present in the Court)

Alleged detenue and her husband decided to elope because their families did not approve their love

Registered Nikkah Nama was on record

At present, the alleged detenue was living with her alleged husband (present in the Court) who was her real cousin as well

Alleged detenue refused to live in Dar-ul-Aman or return to her father's custody

Ex-facie, a presumption of legitimacy has arisen in favour of the validity of Nikkah and in case of conflict between any codal law and the Injunctions of Islam pertaining to the validity of marriage, all other man-made laws must yield to the Injunctions of Islam

If the marriage is held valid in Shariah, it shall be held valid for all practical purposes, unless the Nikkah is successfully challenged and declared invalid by the competent Court of jurisdiction

Petition, being meritless, was dismissed, accordingly.

Held, that through the orders dated 07.02.2024 and 09.02.2024, directions were issued to police of concerned Police Stations to produce the detenu before the Court

On 14.02.2024, SHO Police Station concerned appeared before the Court and filed his report according to which the detenu was arrested on 13.02.2024 and sent to judicial lockup for Test Identification Parade (TIP) in connection with case FIR for the offence under S. 392, P.P.C

Such conduct of the SHO Police Station concerned was sufficient to raise eyebrows, as the entire process of arrest and sending the detenu to the judicial lockup for TIP was carried out after the direction was issued by the High Court to produce him before the Court

In reply to the different Court queries, the conduct shown by SHO concerned was evasive, thus, he was issued a show-cause notice to explain why contempt proceedings should not be initiated against him

District Police Officer (DPO), concerned was also directed to appear before the Court along with the complete record of the said criminal case

On the next date of hearing, the DPO appeared before the Court and filed his report

Record of the case reflected that ASI arrested the detenu on 13.02.2024 at 6:00 p.m. and produced him before the Area Magistrate on the same day at 8:00 p.m. in a slipshod manner as the case before the High Court was fixed on 14.02.2024

Thus, it was seemingly done to legalize the custody of the detenu to avoid the legal consequences of keeping someone in illegal custody and to defeat the directions issued by the Court for the production of the detenu

According to the report of DPO, the detenu was lodged in District Jail on 13.02.2024 but the report of the Superintendent of that jail reflected that the detenu was received in the prison on 14.02.2024 at 7:10 p.m., meaning thereby that on 14.02.2024 the detenu was in the police custody but he was not produced before the Court

When confronted with such state of affairs, the DPO pledged before the Court to hold an independent inquiry to expose the illegalities committed by his subordinate Police Officials

Later, District Police Officer appeared before the Court and stated that during the fact-finding inquiry, it was proved that the detenu remained in illegal custody and apprised the Court that the detenu had been discharged from the said criminal case and strict action was initiated against the delinquent Police Officials involved in keeping the detenu in illegal custody, which would be concluded expeditiously

Show cause notice issued to the Station House Officer, Police Station concerned was withdrawn, leaving the matter to be dealt with by the internal mechanism of accountability in the police department

Petition was disposed of accordingly.

Police claimed that the detenu required in number of cases was arrested in a case registered under S. 392, P.P.C., being nominated through supplementary statement of the complainant and while remaining on physical remand with police had been lodged to judicial custody

Validity

If the accused was in a judicial custody in another case, granting of further physical remand by the Magistrate in case FIR under S. 392, P.P.C., was not illegal, but in order to further ascertain the contention of the petitioner that detenu was not lodged to judicial custody pursuant to order of Magistrate dated 29.12.2023 in case under Ss. 392/411, P.P.C., a report from Superintendent District Jail was requisitioned which was received to the effect that detenu was not lodged in the jail pursuant to order of Magistrate dated 29.12.2023 in FIR under Ss. 392/411, P.P.C.

Thus, High Court by virtue of order dated 20.02.2024 directed Capital City Police Officer to conduct an inquiry in the matter, register a criminal case against delinquent police officers/ officials and submit report to High Court

Said report had been submitted

Capital City Police Officer, after conducting inquiry, had found the delinquent Police Officials as responsible for committing criminal breach of duty and in compliance whereof an FIR under Art. 155(1)(c) of the Police Order, 2002, stood registered

Petitioner stated that now after granting bail to the detenu by concerned Court he had been set at liberty

As Police had also conceded the commission of criminal act by respondents, therefore, constitution petition stood disposed of.

Petitioner alleged that respondent abducted her 13-year old daughter with the help of his cohorts and forcibly married her; that said marriage was void as it was not performed in accordance with the mandatory procedure prescribed by the Christian Marriage Act, 1872; that daughter of petitioner was a minor, and her father's consent was not obtained as required under S.19 of the Act

Validity

Minimum age for a native Christian man to enter into a marriage is 16 years and for a woman 13 years in terms of S.60 of the Christian Marriage Act, 1872

Consent requirement under S.19 is within the age bracket of 16 to 18 and 13 to 18 years respectively

Marriage could be solemnized in the presence of a person licensed under S.9 in the presence of at least two credible witnesses without the preliminary notice required under Part III

Christian Marriage Act does not expressly prohibit the marriage of a minor if it is compliant with S.5 (persons by whom marriage is solemnized) and does not violate S.88 (non-validation of marriages within prohibited degrees)

Birth certificate of daughter of petitioner submitted by her reflected that she was more than 13 years and 04 months at the time of her marriage

On 30.6.2021, daughter of petitioner had recorded her statement under S.164, Cr.P.C. before the Magistrate, claiming that respondent did not abduct her and she married him of her own volition

Thus, her marriage was not vitiated for lack of consent under S.19 of the Christian Marriage Act

Child Marriage Restraint Act, 1929, prohibited and criminalized child marriage in Pakistan

However, the husband or other persons who helped to solemnize the marriage could be charged with the crime but the marriage itself would not be void if a girl under the age of 16 married in violation of the Child Marriage Restraint Act, 1929

In the present case, the petitioner had made only a bald statement that the marriage between respondent and her daughter was void on the ground of consanguinity and affinity but had not furnished any details

Petitioner had also not appended any document with her petition to substantiate it

Even otherwise, since respondent had controverted the petitioner's contention, a factual inquiry was required to determine the truth which could not be conducted by the High Court while exercising jurisdiction under Art.199 of the Constitution

Petition was dismissed accordingly.

Petitioner through constitutional petition sought custody of her daughter-in-law from the illegal and unlawful confinement of police

Station House Officer instead of producing the detenue submitted a report that the alleged detenue was required in FIR No. 754/24 in respect of an offence under S.392, P.P.C and had been sent to judicial lock up

First Information Report No. 754/24, in respect of an offence under S.392, P.P.C, was lodged by the complainant against three unknown persons

Alleged occurrence had taken place in place"D" whereas, the alleged detenue was resident of place "K" of another District

Interestingly, the rest of three accused were also residents of place "D" and it seemed very ludicrous, how the alleged detenue could point out a house for commission of an offence that was situated in some other district,in particular, when the complainant was previously stranger to her

Similar was the situation with the supplementary statement of the complainant which was recorded after twenty days of the alleged occurrence, wherein he did not disclose his source of information qua the involvement of the alleged detenue in the occurrence

Detenue was involved in the case subsequently on the so-called disclosure of the co-accused before the police

According to Art. 38 of the Qanun-e-Shahadat, 1984, admission of an accused before police could not be used as evidence against the co-accused

Even otherwise, confession of an accused before the police is inadmissible in evidence as far as admission of his own involvement in the alleged offence is concerned

So-called disclosure of the co-accused, which even not produced before the Court, was insufficient to curtail the liberty of the alleged detenue, which was her inalienable right enshrined in the Constitution

Apparently, the SHO in active connivance with the Investigating Officer manipulated forged and fabricated evidence in order to avoid the consequences of illegal detention

In such circumstances, the detention of the alleged detenue was declared illegal and result of mis-use of authority by the SHO and Investigating Officer

Evidence so far collected against detenue was insufficient to curtail her liberty even for a minute, therefore, instead of making her a ball of ping pong for approaching the Court of first instance for her release on bail, the Court while exercising its jurisdiction under S.561-A Cr.P.C., granted her post arrest bail and directed that, detenue shall be released from the jail forthwith, if not required in any other case

District Police Officer, was directed to suspend the SHO and Investigating Officer for misusing their authority forthwith, initiate departmental proceedings against them and conclude the same within three months

Petition was disposed of accordingly.

According to S.491, Cr.P.C, habeas corpus petition could be filed in appellate criminal jurisdiction of the High Court if detenue was illegally or improperly detained within its territorial jurisdiction.

If any time, a lawful remedy/course was, apparently, being exploited for personal reasons or to cause pressure upon a rival then such move needed to be examined

Petitioner had filed the petition with mala fide intention by suppressing the real facts

Constitutional petition was dismissed with costs.

Purpose of provision of S. 491 of Criminal Procedure Code, 1898, was meat to get a rule nisi issued so as to get the person, alleged to be illegally detained, free, without going into any details of any complicated questions or inquiry

Summary nature of the proceedings always demanded pointing out of the specific place of detention and a general and vague claim of detention of a person without specific place of confinement would not be sufficient to issue a rule nisi

Petitioner having not specifically disclosed the place of detention of alleged detenue, S. 491, Cr.P.C. through the present petition, being a constitutional one could not help the petitioner

Petitioner had failed to prove his case and, in fact, had filed the present petition with mala fide intention by suppressing the real facts

Total effect of such acts and omissions could not be ignored lightly rather deserved an action so as to discourage such like attempts in future

Constitutional petition was dismissed with costs.

Minor who was of tender age needed constant care of mother and it is a universal truth that there cannot be any substitute for a mother and that the lap of mother is God's own cradle for a child

Custody of minor with the father was improper, if not illegal

High Court on account of an interim measure can grant custody of minor to his/her lawful guardian even if a case is pending in the Guardian Court

Petition was accepted and the custody of the minor was handed over to the mother.

Petitioner craved for recovery and custody of his two daughters, one of them aged about five and half years and the other about 19 years

Validity

Minor was of tender age and she definitely needed love and affection of her mother

Mother's lap was best divine of God and the same could not be snatched without any solid and cogent justification

Mother being natural guardian could not be deprived from the custody of the minor of tender age

Other detenue appeared to be adult and was emotionally attached with her mother

High Court observed that in case of separation both the detenues would miss the love and affection of each other

In the light of statements of detenues, constitutional petition was dismissed.

Bailiff, on direction of court, produced detenus before court and in his report, he submitted that arrest of detenus was shown in roznamcha front desk but no manual roznamcha was available with the police

Station House Officer appeared in the court along with three detenus and stated that they were arrested in two criminal cases and their arrest was also incorporated in the computerised Daily Diary

Record showed that none of the detenus was nominated as accused in either of the two cases

Station House Officer stated that detenus were implicated in the case through the supplementary statements made by the complainants of both the cases

Complainant in his supplementary statement recorded in one case, nominated one detenu and that too solely on the basis of suspicion

Complainant in supplementary statement mentioned names of all the three detenus but in a general manner, without even raising a suspicion about their involvement in the occurrence

Supplementary statements, which were solely made basis for the arrest of detenus, upon scrutiny of record were found to be dubious and prepared for knitting a defence so as to frustrate the present petition

Record showed that no warrant of arrest were obtained, which was essentially required keeping in view the afflux of time between supplementary statement and the date of arrest of detenus

Initially a naive effort was made to defend said supplementary statements but when the SHO was apprised that their genuineness could be ascertained by summoning Register No. V and the absence therein of corresponding entry of the relevant case diaries would entail serious consequences, he retreated from his stance and resorted to silence

Record showed that despite repeated asking of bailiff, the police files of both the cases were not placed before him

Detenus informed the bailiff that they were being unlawfully confined within the precincts of police station for the last four days and that too without getting any court order

No entry about the arrest of detenus was incorporated in Daily Diary in consonance with R. 22.48 of Police Rules, 1934

Though the projected incriminating supplementary statements were recorded on 24.03.2020, however, till 11.05.2020, date of alleged arrest, no arrest warrants were obtained by the police

All the said factors convincingly demonstrated that the victims were kept in police captivity unlawfully and improperly

Bailiff was a court official and in habeas petitions visited police stations under authority of Court, thus his demand for examination of record and search of police station was to be met with acceptance

Refusal to meet with the requirements of bailiff, essential for executing the Court order, made the delinquent Police Official vulnerable to initiation of contempt of court proceedings

Comments submitted by SHO, admitted that twenty eight goats were taken into police possession under S. 550, Cr.P.C., on 27.02.2020 vide Entry No.31 of even date incorporated in Station Diary

Goats, though according to police, were impounded after being found abandoned by unknown persons but no corresponding entry was made in Register No.VII in accordance with Rr. 22.20 & 22.57 of Police Rules, 1934

Since the Court had already arrived at an irresistible conclusion that the detenus fell prey to police excess of unlawful detention, attributable to SHO and Police Constable/ respondents, thus deserved award of compensation to be paid by both the offending Police Officials

As a necessary corollary, SHO was directed to pay Rs.20,000/- to the detenus as compensation

So far as Police Constable was concerned, highhandedness pointed to him by the detenus was on much higher pedestal as he not only made unlawful ingress in the house of the victims but also maltreated the female inmates

Besides that point, Police Constable not only caused embarrassment to all the officials of concerned police station but also disgraced the martyrs of police department

In such circumstances, Police Constable was burdened to pay Rs.40,000/- to the detenus as compensation

Since an opinion affirmative to plea of detenus of unlawful detention was formed, hence they were set at liberty

Petition was disposed of accordingly.

Parties though were having different stance with regard to the manner of change of custody of minor yet there was no denial to the fact that one month prior to the date of filing petition under S.491, Cr.P.C., minor had not been residing with her father and she was not being maintained by him for the last four years

Contention of respondent (father) that brother of petitioner (mother) with the consent of their mother had handed over the minor to the respondent (father); even if taken as true, could not entitle the father to retain custody when mother of the minor was not willing to hand her over

Father had the right to approach the court of competent jurisdiction (Guardian Court) for the custody of minor

Constitutional petition was allowed and interim custody of minor was handed over to the petitioner, in circumstances.

Petitioner sought custody of minors on the ground that their mother had violated the written agreement by contracting second marriage, therefore, she had lost her right of hizanat

Held; legality of agreement could not be determined by the court during the proceedings under S. 491, Cr.P.C.

Parties had already appeared before the proper forum for determination of their rights

Petitioner had not alleged that minors were snatched by their mother

Constitutional petition was dismissed.

Petitioner complained that her son was illegally and unlawfully taken away by Rangers from her house and his whereabouts were not known

Few days after notice was taken by High Court, the agencies released the detenue on a busy road and police finding him in vulnerable situation booked him in a criminal case of possessing illegal weapon, in which only policemen were witnesses

Validity

All such happened after filing of petition by mother of detenue and after notice of his being missing from his home through a courier service to all law enforcement agencies

Such was the manner in which fundamental rights guaranteed under Art.4 of the Constitution to detenue/missing person were violated

Even after having found detenue in jail in criminal case registered with police, habeas petition was even then maintainable

High Court set the detenue at liberty and quashed FIR registered against him

Petition was allowed in circumstances.

Application of the petitioner/mother for recovery and handing over the minor to her was dismissed by the Trial Court on the ground that dispute of the parentage was involved over the minor

Validity

Provision of S. 491, Cr.P.C. could well be invoked in matter of custody of minor even where question of illegal confinement was not involved

Said provision of law could well be exercised even if the custody was not illegal but was improper

Remedy under S. 491, Cr.P.C., was summary in nature, yet it nowhere restrained one to make an inquiry, particularly when it might have advanced the cause of justice and was otherwise not restrained

Court avoid bringing legitimacy of a child into dispute except when such issue was raised for its determination

In the present case, parentage was not disputed

Lap of the mother had been considered as lap of God

Custody of suckling baby was handed over to the petitioner/mother, in circumstances

Petition was disposed of accordingly.

Petitioner sought recovery of her daughter who was allegedly a minor of 12 years of age and was entered into forced conversion and marriage with one of accused

Abductee in her statement under S.164, Cr.P.C. claimed that she was neither a minor nor converted and entered into marriage with accused out of her own freewill

Validity

Question of child marriage was based upon determination of age and as per report of National Commission on Status of Women correct age of abductee was not yet established

Defferent sets of dates existed firstly age in birth registration certificate submitted by petitioner was 8-9-2006, secondly, age referred in marriage certificate was 19 years and thirdly, age as given by Docter was 16 years+/- 1.96 SD

Matter, in circumstances, required evidence which could only be settled by court of competent jurisdiction where challan was submitted under Ss.4, 5 & 6 of Child Marriage Restraint Act, 1929 by investigating officer

High Court in exercise of Constitutional jurisdiction declined to interfere in the matter as stance taken by alleged absuctee which was independently recorded by Magistrate under S.164, Cr.P.C. as well as report of National Commission on Status of Women and age of minior could only be concluded after recording evidence by competent court

High Court, to curb the evil of child marriatge, issued directions to the authorities concerned.

For exercising power/ jurisdiction under S. 491, Cr.P.C., it is limited and conferred to appellate jurisdiction of High Court while under Art. 199 of the Constitution the pre-requisite for exercise of jurisdiction is that corpus must be within the jurisdiction of that High Court

Powers of appellate jurisdiction in terms of S. 491, Cr.P.C. can only be exercised in case of having territorial jurisdiction.

Minor, a suckling baby was forcibly taken away by the father from the lawful custody of his mother within the territorial limits of the relevant High Court

Minor was thereafter moved to different cities in order to evade the process of law

Minor was about one year old and obviously needed his mother to survive

No reason whatsoever had been alleged or pleaded by the father's side that may furnish any justification to deny custody to the real mother and hand him over to the father

Prima facie mother had a right to have custody of the suckling baby

Material and overwhelming factors pointed towards welfare of the minor being best served and protected, if his custody was handed over to the mother

Supreme Court directed that custody of minor shall continue with the mother, subject to any other order passed by a court of competent jurisdiction in appropriate proceedings, however the father may approach the Guardian Court for determination of visitation rights; that appropriate action should be initiated against the father, however the same shall not preclude him from asserting his rights before a Guardian Court in accordance with law, and that the mother shall not remove the minor out of the territorial limits of Pakistan without express permission of a Court of competent jurisdiction

Petition was disposed of accordingly.

High Court, in such like case, while exercising of its powers under S.491, Cr.P.C. has to exercise parental jurisdiction and is not precluded in any circumstance from giving due consideration to the welfare of the minors and to ensure that no harm or damage comes to them physically or emotionally by reason of breakdown of the family tie between the parents.

Petition was allowed and custody of minors was handed over to the mother, in circumstances.

Bailiff, on direction of court, produced detenues before court and in his report submitted that arrest of detenues was shown in roznamcha front desk but no manual roznamcha was available with the police

Investigating officer could not offer any explanation regarding his failure to manually maintain roznamcha

Counsel for the state produced a copy of notification whereby amendment was made in Rr. 22.3 & 22.4 of Chapter XXII of Police Rules, 1934 and contended that due to said amendments computerized entries were being maintained at police stations

Validity

As per order of Provincial Police Officer, it was mandatory to maintain hard as well as soft copy of registers and no absolute bar was provided to manually maintain police registers

Detenues, as per statement of investigating officer, were not required by the police

Detenues were set at liberty and petition was disposed of, accordingly.

High Court while exercising powers under S. 491, Cr.P.C. directed that custody of minor was to be handed over to the mother immediately, however the father would be at liberty to approach the Guardian Court for regularization of custody of minor

Petition was allowed accordingly.

Minor was residing with his paternal grandparents after an alleged compromise between his parents, under which the mother had allegedly given up her right of Hizanat

Habeas corpus petition filed by the mother for recovery of minor had been dismissed by the court below

Held, that father of the minor was stated to be out of country and the minor was living with his paternal grand-parents

Keeping in view such circumstances and the tender age of the minor (aged about 3 years), the real mother, could not be deprived of her right to Hizanat and the alleged compromise or agreement had no binding force in the eyes of law

Impugned order of court below was set-aside, custody of minor was handed over to the mother with the direction that the father's side was at liberty to invoke the jurisdiction of the Guardian Court for regularization of custody of minor

Constitutional petition was allowed accordingly.

Petitioners sought recovery of their daughters from area falling in province of Sindh, from respondents, who had taken them to some place in province of Punjab

Powers conferred upon High Court to issue writ of Habeas Corpus could only be exercised within territorial jurisdiction of court and not otherwise

Detenues were alleged to be in custody in another province and High Court of Sindh had no jurisdiction to issue writ for recovery of detenues

High Court directed Senior Superintendent of Police to ensure that efforts to recover detenues in crime registered at his police station were expedited

Petition was dismissed in circumstances.

Sessions Court handed over custody of two male and one female minor from mother to the father of the minors on his application under S. 491, Cr.P.C.

Applicants (mother and her second husband) contended that Sessions Court looked merely at the apparent poor condition of the minors and thus, had wrongly handed over their custody from them to the respondent/father

Respondent/father of the minors contended that minors were intelligent enough to elaborate their dismal condition with their step-father, carpenter by profession who used to take male minors at work and was accustomed to beat them

Upon extensive queries with minors individually by the High Court, all the three minors had flatly refused to join their mother/applicant

One male minor stated that even, at one occasion, applicant/step-father had badly wounded his hand and nose with knife

High Court found the marks of injuries very much visible on both parts of the minor's body

Other two minors also confirmed statement of said minor and explicitly stated that applicant/step-father was in habit to beat them, so they did not want to live with their mother and step father and they were quite happy with their real father

Maternal grandfather of minors also appeared before the High Court and disclosed that his daughter/ applicant had married another man after committing fraud with her ex-husband, who was a gentleman

Applicant (mother), after obtaining divorce from her previous husband, entered into second marriage and then she claimed her minor daughter from her previous husband

Handing over the custody, in circumstances, would amount to place the minor in the custody of new husband of the mother

If mother had contracted a second marriage with a stranger, she would lose her right of hizanat

Father had not, entered into second marriage yet and was looking after the minor children and was living along with his brother while his father (paternal grand father of minors) was also residing nearby

High Court observed that the custody of the minors should continue with their father as per wishes of the minors, being in the interest, well being and welfare of all of them

Attitude of the applicant/step-father with minors, in the present case, could not be ignored

Custody could not be handed over to a person who was brutal, cruel, inhumane and bitter, who did not hesitate to attack innocent children with knife

Mother had also failed to protect and secure her children from said brutality

Applicant/mother could approach the Guardian Court, if she wanted to obtain the custody of the minors

Application of mother and step-father was dismissed, in circumstances.

Petitioner filed application for issuance of rule nisi for production of alleged detenue (ex-wife) from the custody of her parents and brothers, for recording of her statement

Petitioner had earlier filed an application with the same prayer which was dismissed

Contention of petitioner was that after disposal of aforesaid petition alleged detenue contacted him on the phone and told him that respondents (Parents and brothers) wanted her to marry a stranger whom she disliked and that she was ready to go with him

Validity

Family Court had dissolved the marriage existing between petitioner and the alleged detenue

Petitioner had no matrimonial relations with the alleged detenue, thus he had no locus standi to file the petition, more particularly when his earlier petition with the same prayer was already dismissed

Even at the time of disposal of earlier petition, marriage between him and alleged detenue stood dissolved

Petition was filed in order to exert illegal pressure upon the family of alleged detenue

Petitioner had not come to court with clean hands and had filed the petition with mala fide intention

High Court dismissed the petition with costs.

Person who was not an Army Officer could be detaind and or proceeded under the Pakistan Army Act, 1952 if he fell within the ambit of persons mentioned under S.2(1)(d) of the Pakistn Army Act, 1952

Since it was known that detenue (retired Army Officer) was in custody of military and was being investigated for offences under S.2(1)(d) of the Pakistan Army Act, 1952, hence his production order could not be made

Constitutional petition was disposed of accordingly.

Petitioner/ maternal grandmother assailed order of Sessions Judge whereby he had temporarily handed over the custody of minor to father

Express reference in the said order was made to earlier judgment passed by Guardian Judge, whereby the petitioner's application for appointment as guardian was dismissed

No specific order regarding minor's custody was, however, passed by Guardian Judge

Validity

Ever since minor was six days of age, her custody had been with petitioner (maternal grandmother)

Nothing was available on record to suggest that minor's upbringing by the petitioner was wanting or deficient in any manner

Father had admitted in proceedings before Guardian Judge that just seven months prior to the recording of his evidence, he had returned from abroad

Minor was cared for by the petitioner/her maternal grandmother for eight long years

Minor could not be said to have lived in 'illegal or improper' custody

Minor was not snatched by the petitioner from her father in the recent past and since there was no urgency in the matter due to the fact that minor had remained in her grandmother's custody for eight years

Ingredients for the exercise of jurisdiction under S. 491, Cr.P.C. lacked in the case

Ever since passing of impugned order (nine months ago), minor had been in her father's custody and had been admitted to school

Petitioner resided in different District and if minor's custody was returned to the petitioner, she would be pulled out from her school and re-admitted to her earlier school

Minor's welfare and interest would not be best served if that were to happen

High Court turned down the prayer for handing over custody of minor to the petitioner/grandmother

Petition was disposed of accordingly.

High Court, in exercise of its jurisdiction under S. 491, Cr.P.C., can direct that any person 'illegally or improperly detained' in public or private custody within its territorial limits be set at liberty

Petition under S. 491, Cr.P.C. or a writ of habeas corpus is not ordinarily found to be competent where there is no element of illegal custody of a minor

Court can, however, in the interests of the child's welfare, pass an appropriate order in exercise of its inherent jurisdiction

Court while deciding such petitions does not conduct detailed inquiries or go into factual controversies

Such proceedings are summary in nature and aimed at providing immediate and efficacious relief to the aggrieved party

Orders passed in such proceedings are interim in nature and are subject to the final orders passed by a court exercising jurisdiction under the provisions of the Guardians and Wards Act, 1890.

Petitioners contended that Sessions Court had rightly sent the detenue lady to shelter home as her marriage was disputed under two Nikahnamas

Respondents contended that High Court had rightly released sui juris from the shelter home as Sessions Court had powers to set alleged detenue free but could not force her to be kept at shelter home

Sessions Court was to determine as to whether the alleged detenue was in illegal confinement or not and then to pass order either to reject the application or to set the alleged detenue free but sending the sui juris lady to shelter home in the proceedings under S. 491, Cr.P.C. was without lawful authority

Petitioners were at liberty to agitate before the proper forum; either before the Family Court or if there was any criminal case registered according to the version of the petitioners then in criminal proceedings, the competent Court could determine the proposition but the same could not be resolved under S. 491, Cr.P.C.

Supreme Court observed that no question of law was involved in the present case

Petition for leave to appeal was dismissed accordingly.

Petitioner contended that his wife had been forcibly abducted by her parental family members as she contracted marriage against their wishes

High Court observed that it had become trend in the society, rather it had shaped into well thought practice that girls come out of their houses for couple of hours on any pretext; enter into marriage without the consent of their parents; file complaint alleging harassment; return back to their parental home and thereafter, the entire exercise was followed by petition under S.491, Cr.P.C. before the High Court which was managed with a view to use High Court as a stage of "Rukhsati"

Such indecent activity was nothing less than menace which required to be plugged as far as practicable as the same was not only destroying character of youth but also stigmatizing and diminishing moral values

No evidence had been cited by the petitioner for the purpose of proceedings under S.491, Cr.P.C. to lend support of his assertion about immediate and forcible abduction of his wife

Girl who was major and allegedly abducted but none of the locality got glimpse of the incident

Petitioner had alleged to have been informed about forcible abduction by his wife telephonically but no cellular or landline number had been given to establish the same

Wife of the petitioner was, admittedly, with her parents

Petitioner could resort Family Court for the restitution of conjugal rights

Petitioner had not made out a case for handing over custody of alleged abductee

High Court declined to exercise jurisdiction under S.491, Cr.P.C. to effect "Rukhsati"

Habeas Corpus petition was dismissed, in circumstances.

Father filed habeas corpus petition seeking recovery of his minor son on the ground that the mother had remarried, and, therefore, she had lost her right of 'Hizanat'

Said petition was allowed and custody of minor was handed over to the father

Legality

Impugned order showed that the mother/petitioner was not provided any opportunity to reply to the habeas corpus petition

On mother's first appearance before the Court in absence of her counsel the minor was handed over to the father on the ground that the mother had contracted second marriage

Mother denied before the High Court that she had contracted a second marriage

Moreover the Trial Court did not bother to see that the minor was a suckling baby aged about 30 months

Besides the minor was a son and settled law provided that mother was legally entitled to the custody of minor son till the age of seven years

High Court directed that the father should hand over custody of minor to the mother immediately; that the mother shall not move the minor out of the territorial jurisdiction of the High Court, and that ultimate determination of the entitlement of custody shall lie with Guardian and Ward Judge to whom the parties could approach, if they so desired.

Applicant had alleged that Police had unlawfully taken his son, he should be recovered from illegal custody of the police

Police report and statements of two independent persons confirmed that son of applicant had never been picked up by Police nor applicant was unaware of the whereabouts of his son

Applicant had repeatedly misused the process of court by knowingly and purposely making false statement in his affidavit on oath in support of his application

Applicant, after abusing the process of District Court had courage to approach the High Court for giving similar false statement for action against the Police Officials

Applicant was also guilty of violating the order passed by the High Court for helping the Police to recover his son

Application was dismissed with direction to lodge FIR against applicant under S.182, P.P.C., and any other enabling section of P.P.C. or any other law which could be attributed in the given facts and circumstances of the case

Concerned Police Officer should incorporate in the FIR all the efforts made by him and other Police Officials for the recovery of alleged detenu, who was not missing; so that time consumed by the State functionaries from the date of filing false application under S.491, Cr.P.C., before District Court and High Court, must come on record

Application was dismissed.

High Court was empowered to issue directions in the nature of habeas corpus if the custody of minor was illegally or improperly disturbed

Section 491, Cr.P.C. provided more efficacious, speedy and appropriate remedy in a case of illegal or improper custody of minor

High Court could pass order regarding the temporary custody without prejudice to the rights of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardian Court.

State was responsible to provide every basic need to the minor and the mother whether she was in judicial custody or otherwise

High Court allowed the mother to retain the minor with her.

Under provisions of S. 491, Cr.P.C. court was empowered to pass an appropriate order to ensure that the rights conferred upon the minor child were fully protected in a suitable manner, particularly when minor was of tender age

Habeas Corpus petition in such cases was maintainable.

Minor in the present case, would need constant care of mother and it was a universal truth that there could not be any substitute for mother

Lap of mother was God's own cradle for a child

Petition was allowed accordingly.

Petition was allowed accordingly.

Mother filed criminal miscellaneous application seeking restoration of custody of her minor daughter claiming that she was living at her parents' house along with minor, and her husband had forcibly snatched her minor daughter

Mother contended that she had preferential right of custody of minor, who was of tender age

Father took the plea that petitioner had already filed an application for the custody of minor which was pending before the Guardian Court, and that petitioner had herself gave the custody of minor in the presence of witnesses

Validity

Mother had the preferential right to "Hizanat" till the minor attained the age of seven years in the case of male and till the age of puberty in the case of female

Petition of mother was allowed accordingly.

Mother filed petition for recovery of minor son who was in the custody of his father but the same was dismissed by the Sessions Judge

Validity

Courts were not supposed to go into technicalities of the law in the cases pertaining to the custody of a child

Welfare of a child had to be considered while deciding the habeas corpus petition

Petition under S.491 Cr.P.C. would not be competent when there was no element of illegal custody by the father of his child; but in the welfare of child as well as to ensure the rights which had been conferred upon the child, court could pass appropriate order in exercise of its inherent jurisdiction

Minor was of 13 months and father had solemnized second marriage

Mother was entitled to the custody (Hizanat) of her male child until he had completed the age of 7 years

Right of Hizanat could be enforced against the father or any other person

Father was though natural guardian of the minor yet he could not hold and detain the custody of minor child under 7 years of age and against the wishes of mother who was entitled to the custody of minor or without obtaining proper orders for the custody of minor from the court of competent jurisdiction

Father was holding the custody of minor against the wishes of mother which would prima facie be illegal

Impugned order was set aside and father was directed to hand over the custody of minor to the mother

Father would be at liberty to approach the Family/Guardian Court for redressal of his grievance if any

Constitutional petition was accepted in circumstances.

Applicant filed application under S. 561-A, Cr.P.C. seeking review of impugned order on the ground that the detenues had been produced and their statements had been recorded, in absence of the applicant and his counsel

Question before the High Court was that if the Court found that the person brought before it was not illegally or improperly confined or detained, what order could be passed with regard to custody of that person

Both detenues had been produced before the High Court, and their statements were recorded, whereby they had categorically stated that they being sui juris had sworn their Free Will Affidavits, and contracted marriage, without any coercion, and that they had been residing with their husbands happily, on which the High Court, permitting the detenues to reside with their husbands, disposed of the application

Purpose of filing of the main criminal miscellaneous application, therefore, having already been achieved, mere non-availability of the applicant or his counsel at the time of hearing of the application under S. 491, Cr.P.C could not contemplate any valid ground for review

Application was dismissed accordingly.

Minor sons, whose custody was sought by petitioner mother, were suckling babies of about two years and fifteen days respectively

Such minors required protection and care for twenty four hours and nobody, other than real mother could look after them

High Court under S.491, Cr.P.C., was clothed with extraordinary powers to issue directives in the nature of habeas corpus

Where minors were of tender age, and had been snatched from lawful custody of their mother, though the remedy was available under S. 25 of Guardians and Wards Act, 1890 but provision of S. 491, Cr.P.C., provided efficacious speedy and appropriate remedy

Section 491, Cr.P.C. protected right of a person, who had been kept under illegal or improper custody

Attending circumstances had suggested that restoration of custody of minors under S. 491, Cr.P.C., in circumstances, was necessarily required but as an interim measure

Question of custody, could be decided by the Guardian Judge

High Court directed father of minors to hand over minors to their mother

Petition was allowed accordingly.

Mother of minors alleged that their father was working abroad, and in his absence her in-laws turned her out of the house and also snatched the minors

Minors looked happy and content when they met their mother in court

Nothing had been stated by the in-laws as to why the mother had to leave the house

Minors were of tender age and in the absence of their father, who had gone abroad, the mother was legally entitled to their custody, who was living with her father and brother

Keeping in view the welfare and best interest of the minors their custody was delivered to their mother.

Petition was allowed accordingly.

Deputy Superintendent of police, was alleged to have forcibly taken over detainee/brother of applicant/complainant, who was going with his friend on motorcycle owned by his friend and allegedly demanded Rs.500,000 for his release, otherwise he would be involved in false criminal case

On filing petition under S.491, Cr.P.C., by complainant for recovery of detainee, Additional Sessions Judge/Trial Court, deputed Judicial Magistrate concerned for recovery of detainee

One person who was already confined in said Police Station, on query stated that in the early hour of the day he had seen the alleged detainee at the Police Station, but later on the Police removed his custody

Probability could be that with the arrival of Magistrate at Police Station, the detainee might have been shifted or concealed in any other part near or away from the Police Station

Magistrate in his report stated all said facts, but the Trial Court, despite that, dismissed petition filed under S.491, Cr.P.C.

Validity

Impugned order was passed by the Trial Court without applying judicious mind and without considering the evidence, specially the report of Magistrate

Essence of S.491, Cr.P.C., had not been fully adhered to keeping in view the raid report submitted by the Magistrate, which reflected the illegal detention of the detainee

Trial Court had not taken into consideration facts that fundamental right of protection of a citizen, was guaranteed under Arts.9 & 10 of the Constitution, which ought to be guarded under S.491, Cr.P.C., and Art.199 of the Constitution as to liberty of a person who had been kept illegally and improperly

Material aspect of essence of S.491, Cr.P.C., in the case having been ignored by the Trial Court on the spectrum of facts and law, order passed by the Trial Court was not sustainable

Same was set aside with direction to Trial Court to decide the matter afresh after holding inquiry into the allegation of the complainant regarding illegal detention of his brother/detainee

If the detainee was found to be illegally detained, appropriate proceedings be initiated against respondents in accordance with law.

Detenue who was suckling baby of five months could not be left in the hands of father-respondent and grandmother in presence of mother-petitioner

No one could be the substitute for the lap of mother

Mother could not be denied the right to keep the child with herself on the sole ground of comparative poverty vis-à-vis well being father

Office was directed to issue rule of nisi for the recovery of minor detenue from the custody of father and deliver him through police to the mother

Father was directed to deliver custody of minor to the mother

Mother was directed to furnish indemnity bond to the effect that she would keep the minor in proper condition, health and she should not remove the same from the jurisdiction of High Court without informing the Nazir

Father would have the right to meet the minor son after intimating Nazir in his office who would issue notice to the mother

Mother was bound to bring the minor for the purpose of meeting with the father

Custody of minor should remain with the mother

Petition for recovery of minor detenue was allowed in circumstances.

Father filed application for custody of minor daughter, which had been dismissed in limine and appeal against the order of dismissal was still pending, which showed that the minor had been in custody of the mother

Custody of the minor could be challenged by any of the parties, that were father or mother, by invoking jurisdiction of the High Court under S. 491, Cr.P.C. for restoration of custody to the party who had been deprived of the custody by the other party illegality or other than in due course of law

High Court could restore custody of the minor to the deprived party till their approaching to the competent Guardian Court for adjudication of the controversy on merits

Present application was, therefore, maintainable

High Court handed over the temporary custody of the minor to the mother

Application was allowed accordingly.

Applicant, mother of minor suckling boy aged one year, had alleged that father of minor had forcibly snatched away the minor from her custody

Applicant prayed that custody of minor with the respondent was badly affecting health of minor, he be given in her custody who was his mother

Custody of minor of such tender age, needed constant care of his mother; and his custody to his father was improper

Contention of father that the welfare of the minor would be affected in giving his custody to the applicant, being question of fact relating to guardianship, could only be decided after leading evidence before Guardian Court under the provisions of Guardians and Wards Act, 1890

Application of mother, was allowed, and custody of minor was handed over to her

Father was allowed to visit and see minor twice a month.

Contention of father was that he had moved an application under S. 25 of Guardians and Wards Act, 1890 and Guardian Court had restrained the mother from illegally snatching the minor from his custody

Validity

Mother filed an application on 18-7-2014 before Sessions Court under S.491, Cr.P.C. wherein Station House Officer was directed to produce the detenue before the court on 19-7-2014 on which father made statement that alleged detenue had gone to place "X" but on the same day detenue was brought before the Guardian Court and interim order was obtained

Mala fide on part of father was on record as he did not produce the detenue before the Sessions Court while making a mis-statement that detenue had gone to place "X"

If minor child was produced before Sessions Court then said court would have been left with no other option but to hand over the custody of a suckling child to her mother

High Court while exercising paternal jurisdiction with regard to the matter of custody of minor/suckling baby was to perform such a legal duty in order to ensure the well being and welfare of a minor child

Order passed by Guardian Court or pendency of petition for custody of minor was no bar on decision of an application under S.491, Cr.P.C. on merits

No substitute of real mother existed and minor girl could be brought up properly by mother only and her custody with anyone except the real mother was improper

High Court and Sessions Court had concurrent jurisdiction under S. 491, Cr.P.C.

Paramount consideration for the court in the matters with regard to custody of minor of tender age would be the welfare of a minor

Deprivation of mother of the custody of infant was neither lawful nor proper nor was in the interest of minor aged one year to be kept away from the lap of her mother as there could be no substitute of it

Constitutional petition was allowed and custody of minor was handed over to her mother.

High Court could only issue a writ of habeas corpus in exercise of powers conferred under Art. 199(1)(b)(i) of the Constitution

Right of intra-court appeal against an order passed under Art.199(1)(b)(i) of the Constitution was not available therefore, intra-court appeal was not maintainable

Petitioner had not given the specific date as to when respondent (father) had taken away the minor which was an important factor for exercising the jurisdiction under S.491, Cr.P.C. and Art.199 of the Constitution

No evidence was on record that minor was forcibly snatched by the respondent

Minor was examined by the Sessions Judge while adjudicating the petition under S.491, Cr.P.C. and she was comfortable and showed close attachment with the respondent

No exceptional and extraordinary circumstances existed for exercising jurisdiction under Art.199 of the Constitution and S.491, Cr.P.C.

No illegality had been pointed out in the impugned judgment which did not call for interference in intra-court appeal which was dismissed being not maintainable.