1. ' ARSHAD NOOR KHAN, J.--- By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has prayed for custody of her minor son Ahsan aged about 2-1/2 years who according to her has been allegedly detained by respondent No,3 Anwar Ahmed son of Iftikhar.
2. ' The facts of the case as stated in the petition, in brief, are that the petitioner and respondent No,3 were married inter se and out of wedlock a boy namely Ahsan aged about 2-1/2 was born and in exchange of the marriage in between the parties, the sister of respondent No,3 was married with the brother of the petitioner who have also similar issue out of the wedlock. It is stated in the petition that because of certain matrimonial dispute the marriage could not subsist and was dissolved amongst both the couples by way of Talaq pronounced by the respondent No,3 on 16-6- 2007. It is alleged that at the time of Talaq the petitioner was ousted from the house illegally and her son has been detained by respondent No,3 as such she prayed for recovery of her son.
3. ' Notice has been served upon respondent No,3 and on his behalf Mr. Talib Hussain Arain, Advocate has filed Vakalatnama and counter-affidavit wherein the same facts have been reiterated. The respondents Nos.1 and 2 have also filed their statement denying, inter alia, the allegations of the case of petitioner.
4. ' I have heard the petitioner through her Advocate Miss Razia Khan Bahadur, Mr. Mumtaz Alam Leghari, Assistant Advocate-General for respondents Nos.1 and 2 and Mr. Talib Hussain Arain, Advocate for respondent No,3.
5. ' Learned counsel for the petitioner contended that the minor is aged about 2-1/2 years and that the petitioner has a right of Hizanat to keep the custody of her son upto 7 years and the minor has been illegally detained by respondent No,1 and the welfare of the minor lies with the petitioner as such his custody may be handed over to the petitioner.
6. ' Mr. Talib Hussain Arain learned counsel for respondent No,3 vehemently contended that the petition is not maintainable because alternate remedy by way of filing application under section 491, Cr.P.C. Is available to the petitioner and the instant petition is not maintainable. According to him the marriage between the parties was an exchange marriage and the son of sister of respondent No,3 is in custody of brother of the petitioner and it was settled in between the parties at the time of divorce that they will keep the custody of minors after divorce as such the custody of the minor could not be given to the petitioner.
7. ' Mr. Mumtaz Alam Leghari, Assistant Advocate-General did not support the respondent No,3.
8. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
9. ' At the very outset I would like to deal with the objection raised by the learned counsel for respondent No,3 that alternate remedy to file application under section 491, Cr.P.C. Is available to the petitioner, therefore, the petition is not maintainable. No doubt the petitioner has filed constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 praying therein the custody of her minor son Ahsan aged about 2-1/2 years and there is no such limitation A for filing of such type of petition under section 491, Cr.P.C. And in case, if the petition has been wrongly filed under Article 199 of the Constitution of Pakistan the Court has all the powers to convert the same under section 491, Cr.P.C. The petition is, therefore, converted into criminal miscellaneous application under section 491, Cr.P.C.
10. ' Learned counsel for the petitioner has contended that the petitioner, who has been divorced by respondent No,3 possess the right of Hizanat and can keep the custody of her minor son which is in custody of respondent No,3. Admittedly the age of the minor Ahsan is about 2-1/2 years which is not disputed. The custody of the minor with respondent No,3 is also not disputed. The minor has been produced by respondent No,3 through respondent No,2 viz. S.H.O. Police Station Sanghar.
11. According to Guardians and Wards Act, the mother has right of Hizanat irrespective of the fact that she may or may not maintain her child during the course of such period of Hizanat and the said right cannot be snatched.
12. ' Learned counsel for respondent No,3 has vehemently contended that there was settlement in between the parties that the custody of the minor will remain with respondent No,3 in view of the divorce pronounced by him to the petitioner but the illegal terms and conditions, arrived at in between the parties at the time of divorce, could not override the law of land and the illegal terms and conditions, if any, could restrict the Court to compel the parties to follow the illegal terms and conditions, which otherwise have not been recognized under the law. Respondent No,3 admittedly is driving taxi during whole day and the minor, as per his own statement, is being maintained by his mother (grandmother of the petitioner's child) who cannot maintain the minor and cannot provide such love and affection to the minor which could be provided by the real mother. The same point of welfare of the minor came for consideration before Honourable Supreme Court in the case of Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another reported in PLD 2004 SC 1 and Honourable Supreme Court was pleased to observe that the emotional attachment of the minor with her father is not material to handover the custody of the minor to the mother as the welfare of the child lies with the mother. The dictum laid down by Honourable Supreme Court in the aforesaid case is usefully quoted hereinbelow for the sake of convenience:-- "As same situation is in the case in hand where the respondent had divorced the petitioner and the age of the minor is also two years, therefore, following the observation from the reported judgment, we are of the opinion that in the interest of justice as well as for the welfare of the minor Hina Sultan alias Umm-i-Romaan aged two years, the petitioner being mother is entitled to retain her custody."
13. ' The dictum laid down by Honourable Supreme Court in the aforesaid case is applicable to the present case. In view of the aforesaid circumstances and the dictum laid down by Honourable Supreme Court in the case of Mst. Khalida Parveen (supra) the application is allowed and the custody of minor Ahsan aged about 2-1/2 years is taken from respondent No,3 and is handed over to the petitioner. The petition is disposed of accordingly.