' KHURSHID ANWAR BHINDER, J.---Through the present petition, Attique Rabbani Butt, petitioner seeks recovery of his minor child, namely, Umar Butt from the custody of respondent No,1 and the custody of minor be handed over to the petitioner so that he may be taken to the jurisdiction of England and Wales.
2. Briefly the facts of the case are that the petitioner and respondent No.1 were married on 7th April, 1999 at Gujranwala and after the marriage the couple shifted to United Kingdom where out of the wedlock of the spouses Umar Butt took birth. Now the minor is aged about seven years and a British Citizen. Thereafter the relations between the couple became strained and the marital tie came to an end. Respondent No.1 left the house of the petitioner and started living with her brother in London with the minor child. The petitioner moved the Luton County Court in whose jurisdiction the minor was present for Contract Order which the Court was pleased to grant with a direction to respondent No.1 to refrain from moving the minor child, namely, Umar Butt from the jurisdiction of England and Wales without the consent of the father/petitioner or an order of the Court.
Respondent No.1 gave an undertaking dated 9-6-2006 to the Court in which she promised not to remove the child from the jurisdiction of England and Wales without the written consent of the father/petitioner or an order of the Court. In August, 2006 respondent No,1 in violation of her undertaking and obligations as per the court orders went incommunicado and placed the minor beyond the reach of the petitioner. After several month of search during which assistance of the Interpol was also sought, the petition found out in February, 2007 that the respondent No.1 along with the minor had, in violation of orders of the court of competent jurisdiction in the U.K., moved to Gujranwala, Pakistan. Upon receiving this information, the petitioner was constrained to move the High Court of Justice, Family Division, at London which was pleased to order the minor, Umar Butt to be a Ward of the Court. The High Court was pleased to request the judicial authorities of Islamic Republic of Pakistan to facilitate the return of the minor Umar Butt to England and Wales. The petitioner in compliance with the aforesaid orders of High Court of Justice filed Criminal Miscellaneous No,992-H/2007 before this Court on 10-9-2007 which was withdrawn on 11-9-2007.
3. Learned counsel for the petitioner submits that respondents Nos.1 and 2 have in an illegal manner abducted the minor child Umar Butt and removed him from his ordinary place of residence in violation of the orders of the Luton County Court. He further submits that the High Court of Justice, Family Division, United Kingdom has required this Court to assist and facilitate the return of the minor to England and Wales in accordance with the Protocol made on 17-1-2003 in London and signed by the Hon'ble Chief Justice of the Supreme Court of Pakistan and by the Right Honourable The President of the Family Division of the High Court of England and Wales. In support of his contentions, learned counsel for the petitioner has relied upon Ms. Louise Anne Fairley through Special Attorney v. Sajjad Ahmed Rana and 2 others PLD 2007 Lahore 293.
4. Learned counsel for respondent No.1 submits that this habeas petition under section 491, Cr.P.C. Is not maintainable as the matter regarding the custody of the minor child is pending adjudication before the Guardian Judge at Gujranwala. Even the petitioner did not pay a single penny towards expenses of the minor child. The learned counsel has relied upon Sara Palmer v. Muhammad Aslam 1992 M LD 520.
5. I have heard both the learned counsel and have also gone through the judgments relied upon by both the learned counsel. Petitioner has moved this habeas petition for the recovery of his son Umar Butt from the custody of his mother who after separation is presently putting up with her father at Gujranwala. Before discussing, the merits of the case, this Court has to see after taking into account all the arguments advanced by both the parties as to whether the habeas petition for the recovery of child from the custody of mother is maintainable or not. I deem more appropriate in explaining what habeas corpus means. According to the Blacks Law Dictionary habeas corpus is defined as under:-- "Habeas Corpus.-- (Law Latin 'that you have the body') A writ employed to bring a person before a court, most frequently to ensure that the party's imprisonment or detention is not illegal (habeas corpus and subjiciendum). In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain review of (1) the regularity of extradition process, (2) the right to or amount of bail, or (3) the jurisdiction of a court that has imposed a criminal sentence."
' Mother being the natural guardian of a child and has preferential right of Hizanat is entitled to the custody of a minor in case of separation or divorce between the parties. This Court has to see as to whether in case of divorce when the child is in the custody of mother who is the natural guardian and has a preferential right of Hizanat, habeas petition for the recovery of child is maintainable or not. In this context it can very safely be said that nobody can look after the child better than the mother, therefore, there is no question of having son being with the mother in illegal custody, therefore, habeas petition against the mother is not maintainable in such like cases.
6. Moreover, the petitioner has filed an application under section 25 of the Guardians and Wards Act before' the learned Guardian Judge, Gujranwala which is pending adjudication where both the parties are at liberty to contest the case regarding the custody of child on merits and in support of their arguments whatever material they want to produce they can do so before the Guardian Judge where the matter is already pending.
7. Since the habeas petition is not maintainable and application under section 25 of the Guardians and Wards Act is pending before the Guardian Judge, Gujranwala, therefore, this Court is not inclined in deciding the issue of custody of the child of both the parties. They may have recourse to the concerned court and contest the case on merits.
8. For what has been discussed above, this habeas petition is not maintainable and the same is hereby dismissed.