1. ' ABDUL RASOOL MEMON, J.---The petitioner Mst. Reema wife of respondent No.3 Ali Raza has filed this petition under section 491, Cr.P.C. For custody of suckling baby of two months namely Faisal.
2. ' The facts of the case are that the petitioner was married with respondent No.3 about 13 months ago. During this wedlock she has given birth to master Faisal who is now aged about two months.
3. On 13-8-2013 the respondent No.3 by divorcing driven out her from his house by snatching her two months' son. Master Faisal therefore, she has prayed for interim custody of the minor Faisal.
4. ' SHO/SIP Nisar Ahmed Khokher has produced Master Faisal a suckling baby of 2-1/2 months with respondent No.3 Ali Raza. After hearing the parties, by short order the custody of the minor was handed over in the morning today to petitioner (Mother) on executing P.R. Bond in the sum of Rs.100,000/- forthwith and a surety of equivalent amount to be furnished within seven days to the satisfaction of Additional Registrar of this Court with undertaking that the minor shall not be removed from the territorial jurisdiction of this Court. The following are its reasons.
5. ' Mr. Ali Nawaz Ghanghro, learned counsel for the petitioner has argued that the petitioner is entitled to custody of minor son who is aged about 2-1/2 months and is in improper custody of his father therefore, the petitioner is entitled to the custody of minor. In support of his contentions he has placed reliance on the following case-law:
(1) Mst.Khalida Perveen v. Mohammad Sultan Mehmood (PLD 2004 SC 1).
(2) Nisar Muhammad and another v. Sultan Zari (PLD 1997 Supreme Court 852).
(3) Muhammad Nseer Humayon v. Mst.Syeda Ummatul Khabir (1987 SCMR 174).
(4) Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891).
(5) Mst.Khalida Perveen v. Muhammad Sultan Mehmood (PLD 2004 Supreme Court 1).
(6) Mst.Rubia Ayaz Khan v. The State and another (PLD 2001 Karachi 197).
(7) Mst.Rubia Ayaz Khan v. The State (PLD 2002 Karachi 197).
(8) Mst.Tayyaba Khan v. Syeda Begum and another (PLD 1994 Karachi 204).
6. ' Under section 491, Cr.P.C. The High Court is clothed with an extraordinary power to issue directions in the nature of habeas corpus. These proceedings by their nature are summary in character and the entire evidence is not required to decide the main controversy between the parties.As observed in the cases relied upon by the learned counsel for the petitioner referred above that in matters pertaining to the custody of minors of tender age, the High Court has got jurisdiction under section 491, Cr.P.C. Which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the B right of the parties to have the matter finally adjudicated upon by the Guardian Judge.
7. ' In the case of Mst.Rubia Ayaz Khan v. The State (PLD. 2001 Karachi 197), it is held that the minor aged about four years of age, his legal custody should have been with his mother and his custody with his father would, therefore, be deemed to be illegal and improper, therefore, the father was directed to handover the custody of the minor immediately to the mother till final disposal of the case pending before the Guardian Judge. Moreover, in another case of Mst.Tayyaba Khan v. Syeda Begum and another (PLD 1994 Karachi 204) it has been held that the mother being legally entitled to the custody of her minor son till the age of 7 years, the custody of the minor with father having been demanded by the mother could not be considered as legal. In the said case custody of minor who was present in court with his father was directed to be handed over to his mother immediately with further direction that the parties can agitate the question of custody before the Guardian and.
8. Wards Court.
9. ' In view of the above case-law, it appears that the custody of minor Faisal who is aged about 2-1/2 months with his father should be deemed to be improper, accordingly keeping in view the welfare of child as well as to ensure the right which have been conferred upon the child are fully protected in a suitable manner as held in a case of Mst.Khalida Parveen (Supra). This petition was allowed in the morning by short order and father was directed to handed over the custody of Master Faisal aged about 2-1/2 months immediately to her mother, the petitioner who is directed not to remove minor from the territorial limits of this Court. For ultimate determination of the entitlement of custody shall lie with learned Guardian Judge to whom the parties are directed to approach if they so desire.