' KHADIM HUSSAIN M. SHAIKH, J.---The applicant through this application under section 491, Cr.P.C.
Has sought following relief:--
(a) To issue Rule Nisi for production of detainee, namely baby Javaria (daughter of applicant aged about 18/19 months), from respondents Nos.3 and 4, through respondents Nos.1 and 2, before this Hon'ble Court and her custody may be handed over to applicant.
(b) To pass an appropriate order against respondents Nos. 1 and 2 for their such illegal acts.
(c) ...................
(d) ...................
2. It is contended by the learned Advocate for the applicant that the applicant was married to respondent No,3 namely Muhammad Ayaz and out of the said wedlock the applicant has given birth to two daughters namely baby Javeria now aged of 18 months and baby Batool aged 8 months, that about 5 months back respondent No,3 drove the applicant out of his house along with her minor babies Javeria and Batool and after one month respondents Nos. 3 and 4 forcibly snatched away the baby Javeria, who was hardly aged of 14 months, from the custody of the applicant though she has right of Hizanat till the minor attains majority and he prays for restoration of the custody of baby Javeria to the applicant.
3. Learned counsel for the respondent No,3 has contended that the respondent No,3 is real father of the minor baby Javeria and as such the custody of the said minor with the respondent No,3 is not illegal, per him, the application under section 491, Cr.P.C. Is not maintainable and only guardianship application will lie before the Guardian Judge under the provision of Guardians and Wards Act, 1890.
4. I am not persuaded to agree With learned Advocate for the respondent No,3 because there is no force in the objection raised by him. The question before this Court is with regard to custody of minor and not the guardianship.
5. It is well-settled law that the matters dealt with by section 491, Cr.P.C. And Guardians and Wards 1890 are entirely different and the provisions of both the laws are neither mutually exclusive nor one overlaps or destroys the other. In the case of Muhammad Naseer Humayon v. Mst. Syada Ummatual Khabir 1987 SCM R 174 the plea that dispute between the spouses regarding custody of minor children should not be decided by High Court under section 491, Cr.P.C. Was not entertained and the High Court's order passed in habeas corpus proceedings directing father to handover the person of minor to mother was upheld
6. Admittedly Baby Javeria is about 18 months old and it needs no reiteration that the minor of such tender age would need constant care of mother and it is a universal truth that there can not be any substitute for a mother and that the lap of mother is -God's own cradle for a child. Manifestly the custody of a minor baby Javeria with the respondent No,3 is improper if not illegal.
7. In view of what has been discussed above, this application is allowed and it is directed that the minor shall be handed over by the respondent No,3 to the applicant forthwith.
8. This order shall not, however, be a bar in the way of respondent No.3 in establishing his claim for custody of minor before the Guardian Judge by filing appropriate proceedings, which, if instituted, shall be disposed of expeditiously in accordance with the law and merits of the case.
9. At this stage learned Advocate for the respondent No.3 states respondent No.3 may be allowed to visit and see his child namely baby Javeria on every Sunday for two hours. The contention of the learned Advocate for the respondent No,3 has force. The respondent No,3 is allowed to visit and see the minor baby Javeria at the house of the applicant's parents from 10-00 a.m. To 12-00 noon on every Sunday and take her custody from the applicant and to return the custody to the applicant during the aforesaid specified time without fail.' Order accordingly.