Right of Hizanat

Petitioner assailed order passed by Sessions Judge whereby her application under S.491, Cr.P.C. for custody of minor was dismissed on the ground that the minor seemed comfortable in the company of his father

Validity

Lap of mother was a heavenly place and she had an inherent right to keep her children close to her bosom

Mother was a symbol of sacrifice for her children and there was no substitute of her love and affection, who showered her love and affection upon children from cradle to grave

Petitioner even otherwise had the right of hizanat under the Islamic Law as the age of minor was about 3½ years

Petitioner was entitled to the interim custody and she could not be deprived from the same until and unless decided otherwise by the Guardian Judge

Constitutional petition was allowed and custody of minor was handed over to the petitioner/mother.

Legitimate child could not come into existence without parents so love, affection and care of both the parents always were in the best interest of the child

For growth of the child, balance was always to be maintained while making decision in the matter(s) of custody of minor

Rule of Muslim law had recognized the right of Hizanat which itself indicated that the gender as well as the age of child was to be considered in matters of his/her custody

Said rule needed to be given weight unless the circumstance otherwise made applicability thereof as against the welfare of minor

All said aspects were always to be appreciated while making decision on the question of fitness of parents for custody of child.

Father, as per Islamic Law, is entitled to the custody of his son over seven years of age, but such right of custody of minor is not an absolute right, but the same commensurates with the welfare of the child

Where the circumstances are brought on record to show that in fact the welfare of minor would lie with a person other than the one who was entitled under the personal law, to have the custody of minor, the court should refuse custody to said person

Where, however, the minor is intelligent enough to form his or her opinion, the opinion of the minor was to be considered.

Petitioner being mother of minor, aged about 2 years, sought his recovery from the illegal and improper detention of minor's father

First right of hizanat regarding custody of minor laid with the petitioner

Petitioner had claimed that the minor was snatched from her custody

Petitioner had also appended her affidavit along with the petition but no counter affidavit by the respondent was filed

Petition was allowed and the custody of minor was handed over to the petitioner, in circumstances.

Petitioner/mother assailed order of Family Court whereby the Court while disposing of application under S. 12 of Guardians and Wards Act, 1890 handed over the custody of two minor girls to their father

Validity

Both female minors aged about 7 and 5 years came within the right of hizanat bestowed to the mother under the law

Family Court ignored the relation of mother with the minors and did not even pass an order of meeting/visitation

Family Court based the impugned decision on the grounds that petitioner (mother) had no male relative in the city; that she did not own any house and that she had moved application to the school management for withdrawing the minors from school

Petitioner in her written statement had categorically given details of sources of income/funds she owned

Petitioner had moved an application in the minors' school for getting them admitted in another school nearer to her residence

Presumption drawn by Family Court about removal of minors from the jurisdiction of court was premature

Family Court had ample powers to restrain a party from initiating or taking any step/act contrary to the welfare of minors

High Court allowed the petition and directed Family Court to decide the application under S. 12 of Guardians and Wards Act, 1890 afresh in accordance with law, after hearing both the parties

Constitutional petition was disposed of accordingly.

Mother has a preferential right to hizanat (temporary custody of the mother) till the minor attains the age of seven in the case of male and the age of puberty in the case of female minor. [Para. 26 of the judgment]

Case of mother was that parents and brother of father had asked the mother to allow minor to visit abroad with them for fifteen days

Mother agreed to the arrangement and let the minor go with his paternal grandparents but they returned back to Pakistan without the minor

Respondent, after recurring efforts to frustrate the orders of the High Court, ultimately appeared before the court along with minor

High Court in view of the conduct of respondent disbelieved his version set out in the written objections

Minor, being four years and eight months of age was within the age of hizanat, therefore, mother had a preferential right over his custody

Constitutional petition was disposed of accordingly. [Paras. 2, 26 & 30 of the judgment]

Father is entitled to the custody of male minor of 7 years of age simply for the reason that after attaining the said age, right of hizanat lies with the father, being natural guardian under Muslim Personal Law

Mere fact that minor has attained the age of 7 years cannot be a solitary ground for disturbing the custody of son by mother

Paramount consideration is welfare of minor.

Mother of minors was a doctor by profession and was earning sufficient income; she had been looking after minors since their birth and maintaining a good environment

Petitioner, father had contracted second marriage and mother had not

Father was settled in USA, with his newly wedded wife who was a foreigner

Guardian Judge having rightly dismissed the petition, appeal was dismissed.

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.

Where minor was of tender age, and had been snatched from lawful custody; and there was real urgency in the matter keeping in view the welfare of the minor, provision of S.491, Cr.P.C., provided efficacious and speedy relief

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

Arrangements under S.491, Cr.P.C., were temporary in nature, which were to be dealt with by way of parental jurisdiction

Question of custody, could be decided by the Guardian Judge

Trial Court, in circumstances was not justified in disallowing the custody of minor to the mother; only on the ground that she had approached the court with considerable delay

High Court observed that such matter, should not be dealt with in a mechanical manner, or on the basis of technicalities

Courts below had to invoke the parental jurisdiction

Impugned order passed by the Trial Court was set aside by High Court with the direction that the minor be handed over to the mother, who had right of 'Hizanat' qua him.

Preferential right of hizanat vested with the mother.

Ailing mother could not be deprived of her right of hizanat unless she transgressed the dictums of the superior Courts.

Court below dismissed mother's (petitioner) petition for recovery of minor on grounds that parties had already arrived at a settlement (compromise) by which the father (respondent) was given custody of the minor through his application under S.25 of the Guardians and Wards Act, 1890, and because the mother had contracted a second marriage and the father had not

Validity

Application of the father under S.25 of the Guardians and Wards Act, 1890 was accepted after the parties compromised by submitting their affidavits in court and he was given custody of the child

Mother had given the minor to the father herself in the light of the compromise and she had also contracted a second marriage, therefore, her conduct disentitled her from filing present revision petition before High Court

Mother could assail the order of the court below by filing regular appeal as provided under the law instead of adopting a novel procedure by making a petition under S.491, Cr.P.C. for the recovery of her minor son

Revision petition was dismissed, in circumstances.