' KHURSHID ANWAR BHINDER, J.--- The petitioner seeks recovery of minor detenus namely Yasmeen aged 9/10 years, Esha aged 7 years, Adnan aged 5 years and Afshan aged about 2 years from the illegal and improper custody of respondents Nos.2 and 3.
2. Learned counsel for the petitioner submits that respondent No,2 is father of the detenus and has kept them in illegal and improper custody depriving the mother of her natural love and affections to the children. According to the leaned counsel certain differences cropped up between the spouses and respondent No,2 had turned the petitioner out of the house and not letting the petitioner to meet the children and have kept them in illegal confinement.
3. I have heard the learned counsel for the petitioner and have also perused the available record.
At the first instance it is to be seen as to whether habeas petition filed by the petitioner against respondent No,2 (father of the children) is maintainable or not. In this regard, I am guided by the judgment reported as Naziha Ghazali v. The State and another 2001 SCM R 1782, wherein it has been held that provision of section 491, Cr.P.C. Are not available for declaring any person as guardian or for determining all questions relating to the custody of minor because final decision of the regular custody is to be decided in the proceedings initiated by the party claiming custody of the minor before the Guardian Court. Father being natural guardian of children and it cannot be said that the children are in the illegal and improper custody of the father. It has also been held in the above said case-law that custody of minor with the father cannot be held illegal or unlawful within the meaning of section 491, Cr.P.C.
4. Since proceedings regarding custody of children are not pending before the Guardian Court, therefore, the petitioner had filed the instant habeas petition before this Court against respondent No,2. Forum to decide the custody of children is very much available to the petitioner to challenge her claim on the basis of merits, therefore, she can always claim the custody of children before the competent forum.
5. Under the circumstances, this habeas petition against respondent No,2 is not competent as he being natural guardian of the children and the petitioner may have recourse to the Guardian Court for the redressal of her grievance. This petition being not maintainable, which is hereby dismissed in limine.