' MUHAMMAD AKHTAR SHABBIR:. J.---This habeas petition has been filed by the petitioner for the recovery of her minor son namely Mohsin Masih aged about two years from the custody of respondents Nos.2 and 3. The service upon the sail, respondents have been effected through Army Authorities, who in compliance with the order of this Court have produced the detenu in this Court.
2. The learned counsel for the petitioner contended that the minor child cannot be deprived of the love and affection of lap of his mother. He further contended that this Court in exercise of its jurisdiction under section 491, Cr.P.C., even during the pendency of guardianship matter of the minor before the Guardian Judge, can pass appropriate order. He lastly contended that the mother has preference over the father for the custody of minor child till he attains the age of puberty.
3. I have heard the arguments of the learned counsel for the parties and perused the record.
4. The relationship of wife and husband between the petitioner and respondent No,2 Akram Masih is still in existence. It is admitted position that Mohsin Masih the minor son of the petitioner, is aged about 2 years and in accordance with section 352 of the Mahomedan Law, the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and to the custody of her female child until she has attained the puberty. It is settled preposition of law that the mother can look after the minor detenu in a better way than father or the other relations.
5. Keeping in view the age of, the minor and following the dictum laid down by the superior Court, this habeas petition is accepted and the interim custody of the minor/detenu is entrusted to the petitioner till the final adjudication by the Guardian Judge, if any party approaches that forum.