' MUHAMMAD MOOSA K. LEGHARI, J.---Through this application, the applicant has prayed for interim custody of her minor son Umer Hyder Shah.
2. Briefly stated, the facts are that the marriage of applicant was solemnized with the Respondent on 15-7-2001. From the wed-lock, one baby boy namely Umer Hyder Shah was born at Hyderabad on 16-5-2002. Subsequently, some differences arose between the parties, allegedly the applicant was maltreated and turned out of the house by Respondent. It is alleged that in the end of March, 2005, respondent forcibly snatched the baby who is aged about three years, from the applicant and kept him in confinement. The applicant being the mother was worried about health and well being of the minor baby, therefore, she prayed for grant of interim custody of the minor baby boy Umer Hyder Shah.
2. In pursuance of the notice of this Court, minor Umer Hyder Shah was produced in Court and vide order, dated 2-6-2005 interim custody of the child was given to the applicant.
4. Counter-affidavit and rejoinders have been filed by the parties.
5. In the counter-affidavit filed by respondent, the allegations levelled against him were denied. It was asserted that the minor had been living with the respondent since 20-5-2004, as the applicant herself consented to that because she could not look after the baby due to her professional engagements and for the reason that there was no other person to look after the baby properly. It was further pleaded that the baby was being properly looked after and maintained by the Respondent, who is a Government officer having sufficient means to maintain the minor.
6. The maintainability of this application was also called in question by the respondent, pleading that the custody of the minor with his father was not illegal.
7. In rejoinder the assertions made in the application were reaffirmed by the applicant and assertions made by the respondent in his counter-affidavit were denied.
8. Arguments have been heard.
9. It was contended on behalf of the applicant that Article 341 of Mohammedan Law provides right of Hizanat to the mother up to the age of seven years in case of male child. It was next contended that respondent father has contacted second marriage, therefore, he has rendered himself disentitled to the custody of the minor. It was further submitted that this Court has complete jurisdiction to pass orders with regard to interim custody of the minor child.
10. Conversely, it was contended that rule of propriety demanded that the applicant should go to the lower Court in the first instance, and exhaust remedy before the Court of Session, which possess concurrent jurisdiction. It was further contended that the provisions of section 491, Cr.P.C.
Were not attracted, as the custody of the minor with the father was not illegal. It was next argued that the parties will be governed by the Shia law, as the respondent belonged to Shia sect and according to that law that applicant/mother has no right of Hizanat.
11. Both the learned counsel referred to certain case-law in support of their respective contentions.
12. The contentions raised by learned counsel for both the parties have been considered and the material placed on record has been perused, while keeping in view the settled propositions of law on the subject.
13. At the outset, it will be appropriate to reproduce hereinunder the order, dated 2-6-2005 passed by this Court, whereby the interim arrangements were made:- "2-6-2005.
' Mr. Abdul Sattar Kazi, along with applicant Dr. Ambreen.
' Mr. Madad Ali Shah, Advocate along with opponent Syed Imran Haider Shah.
' Mr. Masood A. Noorani Addl. Advocate-General Sindh along with S.H.O. Bhitai Nagar Ghulam Raza Mari.
' The child Umer Haider has been produced in Court.
' Mr. Syed Madad Ali Shah, Advocate has filed power on behalf of opponent and has filed objections, copy whereof has been supplied to the learned counsel for the applicant.
' The hearing is adjourned to 20th June, 2005. In the meantime the interim custody of the child is given to the petitioner Dr. Ambreen with the direction that the opponent shall be entitled for visitation. The petitioner shall bring the child in the office of Mr. Abdul Sattar Kazi, Advocate on every Friday, where the opponent shall, meet the child from 5-00 p.m. To 7-00 p.m. The opponent shall not remove the child during this period, but he would be at liberty to provide toys, amenities and other gifts etc. To the child, which shall not be refused by the applicant Dr. Ambreen. The applicant shall bring the child in Court on each date of hearing. The visitation arrangement shall be effective from 10th June, 2005.
' Mr. Masood A. Noorani, Addl: A.-G. Is present. His presence is not required as this matter is between the private parties. The State is directed to be deleted from array of parties. The S.H.O. Bhittai Nagar is present and his attendance is discharged.
14. The perusal of the above order clearly reveals that it is tentative in nature and regulates the arrangements for interim custody of the minor.
15. There is no cavil with the proposition that in the case of emergency this Court is vested with ample powers and jurisdiction to pass orders with regard to interim custody of the minor in appropriate circumstances. Certainly such orders passed under section 491, Cr.P.C. Are always tentative in nature. However, it is also undisputed legal proposition that the ultimate jurisdiction to adjudicate the dispute regarding custody of a minor lies with the Guardian Court to be governed under the provisions of Guardians and Wards Act. It will, therefore, not be appropriate at this stage to dilate upon the different contentions raised by both the parties with regard to their sect and faith, the right of Hizanat and the allegations about contracting of the second marriage by the Respondent. These are essentially the factual controversies, which require detailed investigation and can only be resolved by allowing the parties to adduce evidence. In such circumstances, right course left for the parties would be to approach the Guardian Court.
16. Since under the tentative orders passed by this Court, temporary custody of the minor has been handed over to the applicant, the respondent may approach the Guardian Court for seeking appropriate relief. In case, the Guardian Court is approached by the respondent or even by the applicant as the case may be, the Guardian Court shall dispose of such application, as expeditiously as possible, preferably within a period of four months from the date of filing of such application. Till adjudication of the dispute with regard to custody of the minor by the Guardian Court within the time period stipulated hereinabove, the order, dated 2-6-2005 passed by this Court shall remain in operation.
Disposed of.