' MOHAMMAD IQBAL MAHAR, J.---Through instant petition, the petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of Islamic Republic of Pakistan, 1973, praying therein to direct the respondent No,3 to recover the minors from the illegal custody of respondent No,5 and to produce them before this Court and their safe custody may be handed to her.
2. The case of petitioner is that she was married to Respondent No, 5 according to Shariat-e- Mohammadi. From this wed-lock she has two children, the detenus, Imran Ali aged about 10 years and Kamran Ali aged about 08 years. Due to some misunderstanding she filed suit for dissolution of marriage in the Court of learned Family Judge Sukkur, which was decreed and after dissolution of her marriage she is residing in the house of her parents. According to the petitioner, respondent No,5 forcibly took away both the minors and has illegally detained them.
3. Learned Counsel for the petitioner was asked to satisfy the Court about the maintainability of this petition. He submitted that the instant petition is maintainable as there is no efficacious ready except to invoke the Constitutional jurisdiction of this Court. He relied upon case Mst. Saima Aslam v. Asif Tufail reported in 2009 YLR 552 and case of Mst. Rizwana Bokhari v. Abdul Majeed Shah and others reported in 1984 PCr.LJ 2582 and submitted in both above cited cases custody of minors was given to mother therefore, instant petition is maintainable.
4. Learned AAG submitted that since the alternate remedy to approach Guardian Court is available to the petitioner therefore, instant Constitutional petition is not maintainable. In support of his submissions he relied upon case of Mst. Gulzadi v. Government of Sindh, through Home Secretary and others reported in PLD 2014 Sindh 386, Mst. Saddaf v. Shahnwaz and 3 others reported in 2013 MLD 562.
5. I have heard the learned Counsel for the petitioner, learned AAG and have gone through the file.
It is an admitted fact that the suit for dissolution of marriage filed by the petitioner was decreed in year 2013. She has two children Imran Ali and Kamran Ali. No doubt the mother is entitled to "Hizanat" of her male children below seven years but Imran Ali and Kamran Ali are aged about 10 and 8 years respectively and their custody with their father cannot be treated as illegal as he is responsible for their upbringing as a natural guardian. Even otherwise it has been provided under Section 357 of Guardians and Wards Act, 1890 that the father is entitled to the custody of a boy over 7 years of age. In the case in hand none of the minors is suckling baby or infant which requires constant and fair attention of the mother. In case of Mst. Saima Aslam relied upon by learned counsel for the petitioner, custody of minor a suckling baby was given to mother while observing that:-- "Minor was a suckling baby and interest and welfare of the minor demanded that custody be given to petitioner mother who had not married as compared to father of the minor."
' In case of Mst. Rizwana Bokhari the custody of minor boy who was below 7 years was also given to mother as his father has already expired and custody was with grand-father and it has been observed that: "Custody of minor-Minor a boy of below 7 years of age mother, held, entitled to Hizanat of minor under Muhammaden Law and right of grandfather and paternal uncle to custody of such minor would not accrue in presence of mother. Custody of minor boy by grandfather and paternal uncle, held further, illegal/improper, in circumstances"
6. The facts of case laws referred by learned Counsel for the petitioner are totally distinguishable from the facts and circumstances of instant case. Whereas, the facts of case laws relied upon by learned A.A.G. Cited supra are identical to the case in hand in which this Court has dismissed the applications of mother for the custody of minors.
7. In view of above discussion, 1 am of the opinion that the learned Counsel for the petitioner has failed to make out a case for invoking Constitutional jurisdiction of High Court for recovery/production of children in Court as the petitioner has equally, efficacious and alternate remedy to move an application for interim or permanent custody before the Guardian Court under the Guardians and Wards Act, 1890 to obtain custody of her both children from the father, therefore, the instant petition being non-maintainable before this Court, is dismissed.
' These are the reasons of my short order dated 16.6.2016, whereby the petition was dismissed.