Habeas corpus proceedings

2024 PLD 476 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 491Guardians and Wards Act (VIII of 1890), Ss.7 & 9Habeas Corpus proceedingsScopeCustody of minorRegulating meeting with minorPetitioner was real father of minor and step sister of minor was claiming custody

During Habeas Corpus proceedings under S. 491, Cr.P.C., before Additional Sessions Judge, petitioner consented to visitation rights to respondent

On application filed by respondent, Additional Sessions Judge prepared schedule for respondent to meet the minor

Validity

Petitioner's custody was lawful and proper, as he was minor's real father and natural guardian duly looking after him, including his studies

Respondent was step-sister of minor who was married and living with her family

It was in the minor's welfare that his custody should remain with his father, i.e. the petitioner

Though Additional Sessions Judge dismissed application of respondent but directed petitioner to provide her an opportunity to meet the minor twice or thrice a month

Additional Sessions Judge exceeded his jurisdiction while making such a direction

Determination of visitation rights fell in the exclusive domain of Guardian Court

Order of Additional Sessions Judge enforcing meetings with minor was without jurisdiction and such application of respondent was not competent and all proceedings based on such order were unlawful

Respondent could not take benefit of petitioner's conceding statement that he made in earlier proceedings

When basic order was devoid of legal authority and void, the entire superstructure raised thereon would collapse

High Court set aside the orders passed by Additional Sessions Judge enforcing meeting schedule of respondent with minor

Constitutional petition was allowed accordingly.

2015 MLD 659 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.361Criminal Procedure Code (V of 1898), S.491Constitution of Pakistan, Art.199Constitutional petitionHabeas corpus proceedingsKidnapping from lawful guardianshipCustody of motherQuashing of habeas corpus proceedings

Sessions Judge, on application filed by father initiated proceedings under section 491, Cr.P.C. against mother for custody of her own son who was 4 years old

Validity

Mother of child was always a natural guardian along with father

Mother could never be ascribed or attributed offence of kidnapping her own child

Exceptions posted with S. 361 P.P.C. had even gone to the extent of reliving a person from criminal liability even if he/she believed himself/herself to be mother/father of an illegitimate child or who in good faith had believed to be entitled to lawful custody of such child

Child of 4 years needed love, affection and care from mother

Offence of kidnapping from lawful guardian by mother was not made out and Sessions Judge did not examine relevant material on record

High Court set aside the order passed by Sessions Judge, and quashed proceedings under S. 491, Cr.P.C., as continuation of same would amount to abuse of process of law

Petition was allowed in circumstances.

2013 PCrLJ 1503 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 491Guardians and Wards Act (VIII of 1890), S. 25Habeas corpus proceedingsCustody of minorAdjudication upon the matter by the Guardian JudgeEffect

Jurisdiction under S.491, Cr.P.C. was to be exercised by the High Court without prejudice to the right of the parties to have the matter finally adjudicated upon by the Guardian Judge.