This petition has been filed with the prayer that the custody of minor namely Iqra (aged about 12 years) may be handed over to the petitioner.
2. As per brief facts of the present case, the above mentioned minor was in the custody of the petitioner. The petitioner and the detenue filed a suit for the recovery of maintenance allowance against Respondent No. 1, which was decreed in their favour on 21.02.2007 by the learned Judge Family Court, Faisalabad. The decree passed in favour of the petitioner and the above mentioned detenue has not been satisfied so far. The judgment debtor Muhammad Rafique Respondent No. 1, thereafter illegally removed the custody of the alleged detenue on 03.05.2010. The petitioner, thereafter, filed a habeas petition under Section 491 of, Cr.P.C. in the Court of learned Sessions Judge, Faisalabad. Despite repeated efforts made by the learned Sessions Judge, Faisalabad, Respondent No. 1, Muhammad Rafique did not produce the detenue before the above mentioned Court and on the direction of the learned Sessions. Judge, Faisalabad an FIR No. 822/2010 dated 25.06.2010 under Section 363 of PPC was registered against the petitioner at Police Station Ghulam Muhammad Abad, District Faisalabad. Respondent No. 1, later on filed a petition under Section 25 of the Guardians & Wards Act, 1890. The said petition was dismissed vide order dated 13.10.2011 passed by the learned Civil Judge/Guardian Judge, Faisalabad.
3. It is contended by the learned counsel for the petitioner that the petitioner being real mother of the minor/detenue, is entitled to retain her custody; that custody of the minor was illegally removed by Respondent No. 1, therefore, he is not entitled to retain the custody of the minor. It is added that life and health of the minor will be in danger, if the custody is not handed over to the petitioner/mother.
4. On the other hand this petition has been opposed by the learned counsel appearing on behalf of Respondents No. 1 to 3 on the grounds that Respondent No. 1 being father of the minor is her natural guardian and he is entitled to her custody; that the petitioner has contracted second marriage whereas Respondent No. 1 has devoted his life for bringing up the minor; that the daughter of the petitioner has attained the age of puberty and first right of Hizanat does not lie with the petitioner; that the minor has developed profound attachment with Respondents No. 1 to 3 and it will not be in the welfare of the minor to disturb her custody, therefore, this petition may be dismissed.
5. Arguments heard and record perused.
6. It is evident from the perusal of the record that the minor Iqra was illegally removed by Respondent No. 1 from the custody of the petitioner in order to avoid the decree of maintenance allowance, which was passed in favour of the petitioner and the alleged detenue on 21.03.2007 by the learned Judge Family Court, Faisalabad. The petitioner, thereafter, filed a habeas petition against the above mentioned illegal removal of the minor and ultimately, an FIR No. 822/2010 offence under Section 363, PPC was registered' against Respondent No. 1, at Police Station Ghulam Muhammad Abad, District Faisalabad on the direction of the learned. Sessions Judge, Faisalabad.
The petitioner is real mother of the minor and she has first right of `Hizanat' of her minor daughter. It has been laid down in number of judgments passed by the Hon'ble Supreme Court of Pakistan that "Mother's lap is God's own Cradle". In these circumstances, as the custody of the detenue was removed illegally, therefore, this petition is accepted and the custody of minor Iqra is handed over to the petitioner, who is real mother of the detenue. Anyhow, Muhammad Rafique (Respondent No. 1) may file a petition under the Guardians and Wards Act, 1890 for the custody of minor, before the concerned Guardian Court, and he may raise his objection regarding disentitlement of the petitioner to the custody of minor on the ground of her second marriage, if he so desires. The learned Guardian Judge will decide the question of custody, keeping in view the welfare of minor and relevant law on the subject, without being influenced by any observation made in this order, provided a petition is filed in this respect before him.
7. With these observations this petition stands disposed of.