1. SARDAR MUHAMMAD NAWAZ KHAN, J.---This is a habeas-corpus petition under Section 491, Cr.P.C. The case initially was seized with my learned brother Mr. Justice Ghulam Mustafa Mughal who issued production order on 24-3-2005. The police concerned in compliance of order of the Court produced the alleged detenue before the Court. My learned brother made a thorough query from the ward. She is a minor girl born in United Kindom on 22-9-1996 out of wedlock of the contestants.
2. She allegedly was taken out of Briton on or about 14-4-1999 and from there onwards she is living with her father in Mirpur Azad Kashmir. She, as disclosed by her before the Court, is studying in class three. She refused to go with her mother (petitioner). She appeared closely associated with her father (respondent). She looked quite hale and hearty wearing neat' and clean dress. Both the contestants are citizens of the State though they are also United Kingdom's citizens by virtue of law.
3. The mother (petitioner) neither has disclosed her residential address in Azad Kashmir nor has she disclosed as to where and with whom she is residing at the moment. She has given her address care of her counsel in this case as it appears from the memo of the petition.
4. Both the learned counsel laid much emphasis on the scope of section 491, Cr.P.C. The law cited at bar was examined. There is no cavil with the proposition that while deciding the question of custody of a Minor the paramount consideration is welfare of the minor. No doubt, under law, the Court is the guardian of a ward but when question of custody of a ward is under consideration the welfare of the minor is the only touchstone upon which each case is to be tested. This being a question of fact is subject to evidence. When parents are the contestants the proper forum to be contacted is the Guardian Judge (Family Court) in Azad Kashmir. Here in Azad Kashmir which constitutionally is a separate entity different Family Courts are established under law. These Courts are seized with the jurisdiction to decide the custody matters. There fore, the planer jurisdiction to decide the question of custody of minor out of wedlock of contestants lies with Family Court.
5. However, the question which remained under debate before this Court was whether the minor could be handed over to the petitioner while exercising powers available to this Court under Section 491, Cr.P.C.
6. The law cited at Bar or otherwise available on this subject was examined. There is difference of opinion amongst superior Courts. Some are of the view that it is a matter purely falling within the jurisdiction of Guardian Judge and High Court while exercising its powers under section 491, Cr.P.C.
7. Cannot determine the question of custody of a minor. Whereas other view is that if a minor is removed from the custody of a parent who had already been declared by a competent forum B as custodian of the minor then, surely High Court has the powers to hand Over the custody to the petitioner. There is yet another view which .Suggests to say that a mother in case of a female minor till the age of majority and in case of a male minor before attaining the age of 7 years is the custodian and High Court while entertaining an application under section 491, Cr.P.C. Is competent to hand over the custody to the mother however, subject to decision by a Guardian Judge.
8. After having considered all the three views on the subject, we are of the opinion that when there is a conclusive decree by a foreign Court of competent jurisdiction or alike decree from a Court of competent jurisdiction in Azad Kashmir which declares a contestant as custodian of a ward and the ward is removed from the lawful custody, then of course, High Court is competent to hand over the custody of a minor while exercising its powers under section 491, Cr.P.C. However, when there is no such decree; High Court is not competent to assume the jurisdiction of a Guardian Judge (Family Court) having planery jurisdiction to decide such-like matters. The reason being that it is well-settled principle of law that while deciding the question of custody of a minor his/her welfare is the main consideration. This question definitely cannot be resolved in absence of evidence.
9. In absence of a conclusive decree by a Court of competent jurisdiction about a custody matter, the father or the mother as the case may be are the natural guardians of a minor. Thus, a minor can be removed from a parent only when he/she is kept under illegal detention. Generally a minor under the custody of a parent is not under illegal detention unless otherwise proved thus, while asking custody of a minor by a parent from a parent, the petitioner has to make out a case of illegal detention and, unless, it is done section 491 does not come into play. This relief can be given to a claimant when he satisfies the High Court that alleged detenue is under illegal detention or confinement.
10. Coming to the facts of the instant case, it may be observed that here in this case, there is no conclusive decree either by a Court of competent jurisdiction in Briton or by any competent Court in Azad Kashmir showing the petitioner as custodian of the ward. The minor girl aged more than 8 years is residing with her father. She is studying in class III having full attachment and association with her father. Whereabouts of her mother(petitioner) in Azad Kashmir or even in Pakistan are not known. The minor has categorically refused to go with the petitioner (mother). Therefore, in the given circumstances it is not in the interest of justice nor it is in the interest of minor to hand over her custody to the petitioner. However, the petitioner may, if so advised, move Family Court for the custody of the minor and if she successes to satisfy the said Court, custody may be given to her. The learned counsel for the petitioner raised another argument that Hon'ble Chief Justice of Pakistan and the President of the Family Division in Briton have signed a MOU in presence of Hon'ble Chief Justice of Azad Kashmir according to which the Courts in Azad Kashmir are under legal obligation to hand over a minor to British authorities so as to produce him/her before a Court of competent jurisdiction in Briton. He also argued that Chief Justice of Azad Kashmir had issued a directive to all subordinate Courts to act accordingly. No doubt Chief Justice of Pakistan and President of Family Division in Briton have signed a protocol/MOU nonetheless fact remains that Azad Jammu and Kashmir, under the Constitution, is not a part of Pakistan nor Chief Justice of Azad Kashmir has issued any such directive. The Courts here in Azad Kashmir are bound to go by law holding field at the moment and they cannot pass any order not warranted under law. The result therefore, is that the petition having no merit in it is hereby dismissed.