Petitioner Mst. Zohra Hilal has filed this petition under Section 561-A Cr.P.C. against her husband Noor Sakht Shah Respondent No, 1 for the custody of her minor daughter Javeria. Earlier, her application u/S. 491 Cr.P.C. of the nature of a habeas corpus was rejected by the learned Sessions Judge, Mansehra vide order dated 23.9.2008.
2. Arguments of learned counsel for the petitioner as well as State counsel heard and available record gone through.
3. The petitioner claimed that Javeria her minor daughter has been detained by the father improperly and illegally, whereas she being her mother has the right to take back her custody who is hardly seven years old. Learned Sessions Judge, Abbottabad on receipt of her said application, took up the proceedings, issued notice to the respondent with the directions to produce the minor and in the open Court the minor was given choice to select any one out of her parents and she wished and opted to live with her father. Such factors are relevant for disposal of petition under Section 491 Cr.P.C.
4. Apart from the above, the elements of unlawful custody by her father cannot be spelt out. The proceedings under Section 491 Cr.P.C. in character as per ruling laid down in 1999 PCr. LJ page 592 are summary in nature and where question of lawful and unlawful custody of the detenue is before the Court then naturally examination and recording of parties evidence is always necessary. The remedy under Section 491 Cr.P.C. is altogether different exercise of jurisdiction as to those laid down by Guardians and Wards Act, 1890 or under Section 5 of Family Courts Act, 1964. In habeas corpus petitioner matter is to be solved summarily relating to illegal and improper detention of a person in public or private custody, by police or a private person without legal authority or jurisdiction. Where it becomes the duty of Court to interfere take immediate steps and action for production of the detenue. It can set free or direct immediate release of the detenue but no other relief is possible in exercise of jurisdiction under Section 491 Cr.P.C. As against this where due to matrimonial dispute between the parents leading to litigation for custody of minor children proper remedy lays in the Court of Guardian Judge or Family Court, who is parental jurisdiction in a more appropriate legal, proper and effective manner can resolve the controversy in the light of evidence of course keeping in view the best interest and welfare of the minor. So to me, matter in the instant case exclusively falls within the jurisdiction of above said Courts and not through Habeas Corpus Petition u/S. 491 Cr.P.C.
In view of the above observations, the petition in hand being meritless stands dismissed.