G. M. KAUREJO, J.-Mst. Salami wife of Rehmatullah and mother of Mst. Jamalan (aged about 7/8 years) (hereinafter referred as to detenu) has filed an application under section 491, Cr. P. C.
Alleging that the detenu was kidnapped on 15-8-1979 from her lawful custody and guardianship by the respondents. It is the case of the applicant that her husband Rehmatullah had anxiously searched for the girl and had been informed by or A.I Muhammad Rind that the detenu was wrongfully confined in the house of the respondents in Ghareebabad, Taluka Khipro. On receiving the information, applicant's father Sher Dil alongwith Muhammad A.I proceeded to Khipro where they saw the detenue wrongfully confined, but the respondents refused to . Release her from detention. Rehmatullah, father of the detenu filed direct complaint before the District Magistrate, Khairpur on which according to the applicant, no further action appeared to have been taken.
Rehmatullah father of the detenu was arrested and detained on account of the alleged murder of M4. Hajra, his second wife who was daughter of respondent No. 1. It is the plea of the applicant that the kidnapped girl is in imminent danger of her life at the hands of the respondent.
2. Notice was issued to' Respondent No. 1 who appeared in Court on 20-4-1980 and admitted that he bad custody of the detenu. He was directed to produce her in Court on 27-t1-1980. However, as this Court, shows, he remained absent on that date and, therefore, warrants for production of the detenu were issued to the Superintendent of Police, Sanghar to secure and produce the detenu in Court on 6-5-1980. The detenu was, however, inci--dentally produced before the Court on 10-6- 1980 when she was given in custody of Mr. Sarfraz Ahmed, the learned Assistant Advocate-General, who was directed to produce her in Court on 11-6-1980 and has been in custody of the detenu ever since.
3. In the counter affidavit filed by the respondent No. 1, it has been stated that the detenu is daughter . Of Rehmatullah, who had married his daughter Hajra about five years back and in exchange he bad given his daughter Jamalan (the detenu) to his son, named, Member alias Nazar.
The two marriages had taken puce on the same day at the same time and ever since then the detenu had, stayed with him and his family. It was only some times that she visited her father Rehmatullah who is now in jail having been convicted for murdering his daughter Mst. Hajara. In support of his aforementioned plea, ho has produced with his affidavit photostat copy of the Nikahnama of the detenu and also photostat copy of the order of the Sub-Divisional Magistrate, Khipro dated 19th February, 1980 on the application of Sherdil, father of the applicant, which according to the statement in the order was sent by the Superintendent of- Police, Sangbar for judicial probe as desired by the District Magistrate, Sanghar.
4. The detenu was produced in Court and her statement was recorded. It is evident from her appearance that she is a minor, aged about 7/8 years and she called respondent No. 1, Mir Hassan son of Memdhu Khan Rind as her maternal uncle. She showed the desire to stay with him. She did not know the name of her husband and it was only when suggested to her by the Court that she stated that Member was her husband.
5. A perusal of the order of the Sub-Divisional Magistrate dated 19th February 1980 of which a photostat copy has been produced would show that Sherdil, who is stated to have made the application never appeared before the Sub-Divisional Magistrate, Khipro and did not produce any witnesses with regard to his alleged complaint against Respondent No. 1 with regard to kidnapping of the detenu. It was at the most an ex parte order passed after hearing Mir Hassan and the witnesses produce by him.
6. Photostat copy of the Nikahnama attached to the counter affidavit of respondent No. 1 shows the date of the marriage to be 28-11-1976 and although the name of the bride is given as Jamalan daughter of Rehmatullah, her age is shown to be 18 years. The document does not bear the signature of the bride or even (at least in the photostat copy) the thumb---mark purporting to be that of the detenu.
7. It has been contended by Mr. Gulab M. Rang, the learned counsel for the respondent and also by Mr. S. Sarfraz Ahmed, the learned Assistant Advocate-General appearing on behalf of the State that since the matter pertains to custody of a minor, it is in the exclusive jurisdiction of the Family Court under Act XXXV of 1964. It may, however, be stated at the very outset that this Court is not concerned with deciding the matter about the guardianship of the minor or with regard to the alleged kidnapping of the minor which is a Criminal offence and of which at least according to the petitioner a direct complaint was lodged with the District Magistrate, Khipro. In the instant application which is under section 491, Cr. P. C. It has to be considered whether the detenu is illegally or improperly detained in the custody of the respondents. Even if the version of Respondent No. 1 that the minor is married to his son is accepted, although it could be said! That the detention of the female minor is not illegal, in view of the right of Hizanat of the mother under the Shariat Law the detention could well be' considered to be improper. The detenu is a Muslim minor girl and the` parties are also Muslims belonging to Hanafi sect. Undoubtedly the females minor (referred to herein as detenu) is a child of tender age who has notattained puberty and, therefore, the petitioner who is the mother of the detenu has right to her custody even in preference, to such right of a legal guardian such as the father or the husband.
8. It has been further contended by the learned counsel for the respondents that the minor is by now very happy staying with them and, therefore, it will not be for the benefit of the minor to give her custody to the mother at this stage. This plea is based on the statement of the detenu in Court that she would prefer to stay with respondent No. ,1 whom she called her maternal uncle. The welfare of the minor is no doubt to be considered but the provisions of the personal Law with regard to custody of the minor which are in accordance with the Shariat Law cannot be said not to be for her welfare. With regard to her present preference for Respondent No. 1, the same question had been determined in Mst. Wallan v. Sultan and 3' others 1977 P Cr. L J 1073 by the Lahore High Court in the decision where also the custody of the minor and the right of the mother to the Hizanat of her minor children in accordance with Law of Shariat wasconcerned. It was observed that mind of children poisoned against their mother by respondents, having no right to custody or Hizanat, the preference of such children had not to be considered while giving their custody to her mother.
9. While dealing with the subject of welfare of the minor, it-is observed that by permitting the respondents to have the custody of the minor, her right to the exercise of the option of puberty would be completely negatived if before attaining puberty she is permitted to reside with her so- called husband even in case the respondents succeed in proving that there was marriage solemnized of respondent No. 2 with the detenu. Mr. Sarfraz Ahmed, the learned Assistant Advocate-General who represented the State stressed the contention that since the case involved the right to guardianship and custody of the minor and since under Muslim Family Laws Ordinance, it is one of the matters shown in the Schedule with reference to which the Family Court has exclusive jurisdiction, the jurisdiction of this Court under section 491, Cr. P. C. To pass orders in the case is completely ousted. As already stated although, if the marriage between respondent No. 2 and the detenue is proved, her detention in private custody of the respondents may not be termed as illegal, in the circumstances of the case, looking to the fact that the Shariat Law gives her a right of exercise of option of puberty, the aforesaid detention is undoubtedly improper and against the Welfare of the minor.
10. In Muhammad Zakir v. Taj Muhammad and others 1977 P Cr. L J 443, the decision of the Lahore High Court where an application under section 491, Cr. P. C. For custody of detenu was made and right of custody of recovered girl was sought by husband of the girl, father of a paramour and mother of the girl, the Court refused to give such custody to the husband as Rukhsati had not taken place and also declined to hand over the girl to paramour's father as .It was considered tot tantamount to putting a premium on immoral activities of a paramour and it was held that interest of the minor girl alone being of paramount consideration while determining the question of custody of a minor and mother being more concerned about safety and security of the girl she had a preferential right to such custody irrespective of any other interest.
11. It has been contended by the learned counsel for the respondents that' under section 491, Cr. P.
C. The relief which the Court grants is a discretionary relief. It has to be .Exercised only when the Court thinks it fit to exercise such discretion and, therefore since there has been lot of delay in moving to Court the matter is not fit for exercise of the discretion. A perusal of the record would show that it is the case of the applicant that the detenu was kidnapped on 15-8-1979 and her husband has been searching for the girl and it was only when A.I Muhammad Rind informed them that he had seen the girl wrongfully confined in the house of the respondents that the father of the petitioner took further steps for recovery of the girl. The father of the detenu had also filed a direct complaint before the District Magistrate, Khairpur under section 363 read with section 34 of the P. P.
C. against the respondents. It is also clear that the instant application was filed by the mother of the detenu after the father of the detenu bad been convicted and sentenced to imprisonment in the jail in a case of murder. If we are to believe the version of the petitioner and there is no reason for us not to believe it, there would appear to be no such delay as could be considered sufficient for not exercising the power under section 491, Cr. P. C.
12. We accordingly direct that the custody of the girl be handed over to her mother Mst. Salami wife of Rehmatullah and it is for the respondent No. 2 if so advised, to approach the proper forum for restitution of conjugal rights at the proper time, if he could prove that she is his wife.