1. MRS, QAISER IQBAL, J.---Through this constitutional petition the petitioner has assailed the impugned order passed upon an application under section 491, Cr.P.C. Wherein the petitioner has prayed that the custody of the minor Muhammad Shayan Butt aged about three years be delivered to her from the custody of father Muhammad Sujawal Butt.
2. ' In these proceedings parties being husband and wife parted away on account of petty dispute, out of wedlock one son and daughter were born, both are minors, They remained in the custody of the mother later custody of the minor son was taken away by the father on 9th October, 2008. The petitioner has invoked its jurisdiction under section 491, Cr.P.C., relief as claimed was declined through the impugned judgment, dated 1-12-2008.
3. ' Learned counsel for petitioner has contended that the minor being three years of age has got a right, guaranteed to live with her mother till the time of attaining age of seven years according to Muslim Sharia Law and/or adjudication of the matter of custody by a Guardian Court. It is next urged that the facts contained in case of Nazia Chazal reported in 2001 SCM R 1782 were altogether different than the facts involved in the present case as the marriage between the parties have not yet dissolved and the minor son was left by the father along with the minor daughter in the custody of the mother. Subsequent thereof father has surreptitiously removed the custody of the minor son from the custody of the mother by force therefore, it will be in the interest and welfare of the minor that his custody be handed over to the mother till decision of the issue by the Guardian Judge. In support of the above contention reliance is placed on Ahmed Samt and 2 others v. Saadia Ahmed and another (1996 SCM R 268), following dictum has been laid down:-- "In the case before us, the admitted position in the case is that the two minors in the case were in the custody of respondent No,1 from July 1994 to 8th of September, 1994 when they were sent at the request of petitioner No,1- to his house for the purpose of meeting grandparents. The contention of respondent No,1 consistently was that the children were never sent back to here after they were dropped at the house of petitioner No,1 to meet the grandparents, while the petitioner No,1 contended before the learned Judge inchambers that after two days namely, 10th of September, 1994 the children were sent back to respondent No,1 but she voluntarily returned the custody of the children to petitioner No,1 on the plea that the maintenance of children was the responsibility of petitioner No,1. This latter allegation of petitioner No, 1 is very vehemently denied by the respondent No,
1. We have noticed that in the notice which was served by petitioner's counsel on respondent No,1 on 19-11-1994, it was not alleged that respondent No,1 had voluntarily left the children at the house of petitioner No,1 after they were returned on 10th of September, 1988 having meet with their grandparents. Respondent No,1 in reply to the above notice the petitioner's counsel, vide letter, dated 26-11-1994 had raised the plea that after the children were dropped at the house of petitioner No,1 at his request to meet the grandparents, the custody of children were never 'restored to her as promised. Keeping in view the above circumstances and the fact that the minors are aged about 4 and 2 years respectively, the order passed by the learned Judge directing restoration of the custody' of minors to respondent No,1 who is their mother, cannot be described as arbitrary exercise of the power under section 491, Cr.P.C. We are however, of the view that the learned Judge while deciding the petition under section 491, Cr.P.C. In which he was only concerned with the question of removal of the minors from the lawful custody of respondent No,1, should have refrained from making any observation with regard to right of petitioner No,1 and the respondent No,1 to the custody of two children as this question was already pending adjudication before the Guardian Court in an application under section 25 of the Act which, we have been informed, was filed by the petitioner No,1 during pendency of the petition under section 491, Cr.P.C."
4. ' In case of Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1), the dictum laid down is reproduced herein below:-- "In our opinion in the cases pertaining to the custody of a child, the courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petition under section 491, Cr.P.C. Is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the courts could also pass appropriate orders in exercise of its inherited jurisdiction. In this behalf in the judgment relied upon by the learned counsel for the petitioner i.e, Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir (Supra), a learned Judge of the High Court changed the custody in exercise of the jurisdiction under section 491, Cr.P.C. And against the said order petition for leave to appeal was filed before this Court but leave was declined keeping in view the fact that the parties have parted their ways and the minor is of a tender age. 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."
5. ' In case of Mst. Rubia Ayaz Khan v. The State and another (PLD 2.001 Karachi 197), while dealing with the identical issue, upon reviewing the case-law on the subject, it was opined that High Court under section 491, Cr.P.C. Has jurisdiction to hand over the custody of a minor to mother who is entitled for the interim custody of the minor whereas the custody of the minor with the father shall not be legal and proper. Relying upon the Urdu translation of Hidaya Vol.II, by Allama Maulana Sayed Ameer Ali, published by Quanooni Qutab Khana, Katchery Road, Lahore at page 326, it was held that the minor was aged about 4 years, therefore his custody should be with the mother.
6. Upon respectively agreeing with that the dictum laid down by the Hon'ble Supreme Court in case of Mst. Khalida Perveen, without going into the technicalities in law keeping in view the facts and circumstances of the case taking into consideration the welfare of the minor I feel it appropriate to order in exercise of inherent jurisdiction that the custody of minor Muhammad Shayan Butt be handed over to the mother who is entitled to retain her custody. The petition was disposed off in above terms vide short passed today and the interim custody of the B minor was delivered to the petitioner Mst. Sana Pervaiz by the respondent father. With the above observations parties shall be at liberty to approach to the Guardian Judge for redressed of the grievance if any. The guardian Judge shall deal with the matter independently if proceedings are initiated before him in accordance with law without being influenced in any manner from the observations made herein above.