Tariq Saleem Sheikh, J. Rehana Kausar married Muhammad Anwar and the couple had a daughter, Sehrish Anwar (Respondent No.3). After Muhammad Anwar's death, she married the Petitioner. On 26.10.2018, they had a son who was named Husnain Ali. On 06.11.2021, Rehana Kausar died after which Petitioner's sister Sajida Hameed, a divorcee, took care of him. On 06.09.2022, Respondent No.3 made an application under section 491 of the Code of Criminal Procedure, 1898 (the "Cr.P.C.") in the Sessions Court at Chunian to recover Husnain Ali from the alleged improper custody of the Petitioner. The Additional Sessions Judge directed the Station House Officer concerned to produce the minor and, after hearing the parties, dismissed the aforementioned application by order dated 07.09.2022. He held that there was no justification for handing over the minor to Respondent No.3, his step-sister. However, he directed the Petitioner to allow her to meet him twice or thrice a month.
2. On 01.10.2022, Respondent No.3 filed an application before the Additional Sessions Judge inter alia praying that he should enforce the order dated 07.09.2022. The Judge summoned the Petitioner and minor Husnain Ali for 08.10.2022. On that date, the Petitioner stated that he would allow Respondent No.3 access to the child if the court settled a schedule for their meetings.
Respondent No.3 concurred. The Judge set the case for another session on 26.10.2022 and directed the Petitioner to bring the minor again. On 26.10.2022, he adjourned it to 10.11.2022. That day, in light of the parties' agreement recorded on 08.10.2022, he directed the Petitioner to provide Respondent No.3 an opportunity to meet the minor two or three times a month, once at the beginning and once in the middle of the month. Subject to this direction, he disposed of the above-mentioned application of Respondent No.3.
3. The Petitioner has assailed the vires of the orders dated 07.09.2022, 08.10.2022 & 10.11.2022 through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"). He contends that section 491 Cr.P.C. does not authorize the Additional Sessions Judge to schedule meetings between Respondent No.3 and Husnain Ali. The Guardian Court has the sole authority to do so.
4. Respondent No.3 has contested this petition and claims that the Petitioner is estopped from challenging the meeting schedule because he consented to it.
Discussion
5. Habeas corpus is a Latin term which means "you have the body." Habeas corpus has its roots in the most valuable and sacred human rights, i.e., personal liberty and human dignity. All civilized societies have worked to protect a citizen's liberty, and if the restriction on him is illegal, the courts should step in to free him. An English author writes: "Of what avail are the rights of man if he has no means of escaping arbitrary, improper, or wrongful imprisonment? Habeas corpus is the means whereby the validity of imprisonment is tested".[1]
6. The writ of habeas corpus is one of the oldest writs known to the common law of England. In Secretary of State for Home Affairs v. O'Brien, [1923] AC 603, Earl of Birkenhead described it as "a writ antecedent to statute, and throwing its roots deep into the genius of our common law." The writ of habeas corpus is more efficient than any other remedy in protecting the right to liberty guaranteed by the famous Magna Carta.[2] It is, therefore, also called the "Writ of Liberty."[3] Habeas corpus is an exception to the general rule that a writ petition can be instituted only by a person whose rights have been infringed. A stranger can also apply for habeas corpus.
7. The precise origins of the writ of habeas corpus are unknown.[4] However, in Kanu Sanyal v.
District Magistrate, Darjeeling and others (AIR 1973 SC 2684), Bhagwati J. observed that during the twelfth and thirteenth centuries, the writ of habeas corpus was a special kind of summons used in the mesne process. It was merely a command by the court to someone to bring a particular before it. In most cases, it was aimed at persons not in custody but at large. In the early fourteenth century, the common law courts started using the writ of habeas corpus to extend their jurisdiction at the expense of the rival courts. As a result, the writ of habeas corpus cum causa appeared. It not only commanded the sheriff to "have the body" of the person mentioned therein like its predecessor but added the words "with the cause of the arrest and detention." This writ required the person having the custody of a prisoner to bring him before the court along with the reason for his detention. Thus, it became a means of testing the legality of the arrest. In due course, the writ of habeas corpus, known in this form as habeas corpus ad subjiciendum, came to be a writ by which a person unlawfully imprisoned could secure his release. In this way, it assumed great constitutional importance as a tool for challenging arbitrary imprisonment by the executive. The Habeas Corpus Act of 1679 codified the procedure for issuing a writ of habeas corpus. Before it, Parliament passed the Habeas Corpus Act of 1640 to overturn a ruling that the King's command was a sufficient answer to a petition for habeas corpus. The Habeas Corpus Act of 1816 changed and expanded the legislation's territoriality.
8. The writ of habeas corpus is one of England's most potent protections of people's liberty. Albeit the grounds for issuing it are somewhat similar, the writ of habeas corpus is not a part of the judicial review procedure.[5] It is a prerogative writ under which the King can look into any laws that deprive his people of their liberty. In general, the writ cannot be denied because an alternative remedy for challenging the legality of an individual's detention is available.[6]
9. The most distinguishing feature of the writ of habeas corpus is its peremptoriness. In Cox v.
Hakes, [1890] UKLawRpAC 36; [1890] 15 A. C. 506, Lord Halsbury, LC., said: "The essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom and his release if the detention is found to be unlawful." Unlike other prerogative writs, this is based on the right rather than mere discretion. However, courts have traditionally refused to entertain habeas corpus petitions to challenge convictions or sentences handed down by the Courts of Record or inferior courts, directing the party to seek the remedy provided by statute.
10. In the United States, the first ten amendments (generally known as the Bill of Rights, 1791) do not mention the writ of habeas corpus. However, Article I, Section 9, clause 2 of the U.S. Constitution prohibits Congress from doing certain things. The first of these prohibitions states: "The privilege of Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." According to Chief Justice William H. Rehnquist, "the assumption has been that the limitation on suspension of the writ contained in Article I implies a guarantee of its existence. The assumption has never been tested because the very first Congress provided for the writ by statute."[7]
11. Insofar as the Indian sub-continent is concerned, we may begin with the Code of Criminal Procedure, 1898 (the "Cr.P.C."). It codified the writ of habeas corpus by introducing section 491.
Originally, the High Courts in the three Presidency towns of Calcutta, Madras, and Bombay had the authority to issue this writ but they only exercised power in respect of their "ordinary original civil jurisdiction". As a result, when the person held was outside the jurisdiction of such courts, section 491 was inapplicable. Subsequently, section 491-A was enacted, which provided that any Chartered High Court could exercise the powers conferred by the section, in the case of European British subjects, within the appellate criminal jurisdiction and such other territories as the Central Government may direct. The Criminal Procedure Amendment Act of 1923 extended section 491 to all the High Courts in respect of their "appellate criminal jurisdiction". In consequence, all the High Courts in India could exercise jurisdiction under section 491 Cr.P.C. in their respective territorial jurisdictions but not when the person was detained beyond those limits.
12. At this stage, it may be mentioned that Ordinance VIII of 2002 in Pakistan has added sub-section (1A) in section 491 Cr.P.C. Now, the Sessions and the Additional Sessions Judges can issue directions of the nature of a habeas corpus subject to the conditions specified by the High Court in a general or special order published in the official Gazette. Presently, section 491 Cr.P.C. reads as under:
491. Power to issue directions of the nature of a habeas corpus. Any High Court may, whenever it thinks fit, direct:
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law:
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively.
(e) that a prisoner within such limits be removed from one custody to another for the purposes of trial; and
(f) that the body of defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.
(1A) The High Court may, by general or special order published in the official Gazette, may direct that all or any of its powers specified in clauses (a) and (b) of sub-section (1) shall, subject to such conditions, if any, as may be specified in the order, be exercisable also by -
(a) a Sessions Judge; or
(b) an Additional Sessions Judge, within the territorial limits of a Sessions Division.
(2) The High Court may, from time to time, frame rules to regulate the procedure in the cases under this section.
(3) Nothing in this section applies to persons detained under any other law providing for preventive detention.
13. In Pakistan, before July 1954, the habeas corpus jurisdiction vested in the High Courts under section 491 Cr.P.C. Thereafter, the Government of India (Amendment) Act, 1954 also conferred constitutional power on the High Courts to issue such writ by inserting section 223-A in the Government of India Act, 1935. Article 170 of the 1956 Constitution, Article 98 of the 1962 Constitution, and now Article 199 of the 1973 Constitution have maintained this jurisdiction.
14. The High Court's jurisdiction under Article 199(1)(b)(i) of the Constitution of 1973 is much wider than section 491 Cr.P.C.[8] In Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Hamoodur Rahman, CJ. wrote: "In my view the words 'in an unlawful manner' in sub-clause (b) of Article 98(2) [of the Constitution of 1962] have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law ... It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution makers intended that this most cherished right should not be taken away in an ordinary manner and hence by sub-clause
(b) of clause (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of writ of habeas corpus or the Rules laid down under the various Habeas Corpus Acts. The court must, nevertheless, in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered. The content of the power vested by the Constitution in the High Court cannot be limited or taken away by sub-constitutional legislation, but the reference to the statute and the other factors mentioned above is rather for determining its true nature, scope and legality."
15. Habeas corpus is available against anyone suspected of unlawfully detaining another person, not just jailors, police officers, or other public officials whose duties normally include arrest and detention. It may also be filed in respect of minors. In R v. Greenhill, (1836) 4 A & E 624, Coleridge J. explained: "A habeas corpus proceeds on the fact of an illegal restraint where the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody, because the law presumes that where the legal custody is, no restraint exists." In Queen v. Clarke, (1857) 7 EL & BL 186: 119, ER 1217, Lord Campbell, C.J., said at p. 193: "But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty."
16. According to Basu, the use of habeas corpus in custody cases is very different from its traditional use. It is considered a matter of nurture, control, and education rather than liberty. It is used to protect the child's soul rather than their body.[9] The American Jurisprudence states as follows in the context of reviewing a parent's claim for custody of a child through a habeas corpus proceeding: "... An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be satisfied by a change of custody. In determining whether it will be in the best interest of a child to award its custody to the father or mother, the court may properly consult the child if it has good judgment."[10]
17. In Howarth v. Northcott, (1965) 152 Conn. 460, 208 A.2d 540, the Supreme Court of Connecticut said: "The employment of the forms of habeas corpus in a child custody case is not to test the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate."
18. In Syed Saleemuddin v. Dr. Rukhsana and others, (2001) 5 SCC 247, the Supreme Court of India ruled that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the court's primary consideration should be whether the child's current custody is unlawful and whether the child's welfare requires it to be changed. In Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others (AIR 2019 SC 2318), the Indian Supreme Court ruled that the High Court has jurisdiction in child custody cases only when a minor is held by someone not entitled to his legal custody. However, depending on the circumstances of the case, the parties should ordinarily seek relief under the Hindu Minority and Guardianship Act or the Guardian and Wards Act because the proceedings before the writ court are summary in nature.
19. In Pakistan, the Guardian and Wards Act of 1890 (the "GWA") is the principal legislation that deals with guardianship matters. Section 7 addresses the appointment of a guardian, while section 25 empowers the court to order that a ward be returned to the guardian when removed from custody if the ward's welfare requires it. Section 12 authorizes the court to make interlocutory orders for the protection of minors and the interim protection of their person and property. The habeas corpus jurisdiction under section 491 Cr.P.C. is extraordinary. In Muhammad Javed Umrao v. Uzma Vahid (1988 SCMR 1891), the couple with two daughters divorced. The mother filed two separate applications under sections 12 and 25 of the GWA in the Guardian Court in Lahore. On the other hand, the father made an application under sections 7 & 9 of the GWA in the Guardian Court at Abbottabad. Although these applications were still pending, the High Court entertained the mother's petition under section 491 Cr.P.C., granted her custody of the minors, and ordered that they shall remain with her until they reached puberty. The father argued before the Supreme Court of Pakistan that the Guardian Judge had exclusive jurisdiction under the Family Courts Act and that the High Court could not decide the issue of minors' custody and guardianship in proceedings under section 491 Cr.P.C. The Supreme Court ruled that the scope of the GWA is significantly different from section 491 Cr.P.C. The one does not exclude, overlap, or destroy the other. The facts of individual cases may be such that the cover of one type of proceeding is used to advance the cause of the other. In such instances, the court should determine the core issue and then redirect the proceedings to the appropriate forum under section 491 Cr.P.C. or the GWA. The Supreme Court further ruled that section 491 Cr.P.C. is not normally available for appointing a guardian or resolving a child custody dispute. Therefore, it set aside the High Court's decision insofar as it stated that the minors shall remain with their mother until puberty. It ordered that the issue of final custody would be decided in the proceedings initiated by the mother in the Lahore Guardian Court under the GWA, and if she does not pursue the matter, by the Guardian Court at Abbottabad. If neither proceeding is prosecuted to a conclusion, the High Court's order regarding present custody shall remain intact without the qualification that it will last until puberty. The right to minors' regular custody must be based on factual findings primarily motivated by their well-being.
20. In Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852), the Hon'ble Supreme Court held that the High Court's jurisdiction under section 491 Cr.P.C. is extraordinary and, as such, should be used sparingly. Normally, forums of plenary jurisdiction should be allowed to adjudicate the child custody disputes. It also approved the law laid down in Ch. Noor Hussain v. The State (1983 PCr.LJ 796)[11] which stated that the High Court should exercise powers under section 491 Cr.P.C. in cases of true emergency when dealing with minors. The parties should not be deprived of an opportunity to adduce evidence before the Guardian Court.
21. In Naziha Ghazali v. The State and another (2001 SCMR 1782), the mother applied to the High Court to recover her minor son under section 491 Cr.P.C., stating that the father had wrongfully removed him from her custody. However, the facts did not support her position, and there was no proof that the father's custody was unsuitable. The mother no longer had the right to Hizanat because the boy had grown older. Furthermore, he was enrolled in a school appropriate to the parties' socio-economic status. The Supreme Court was informed that no proceedings under the GWA were pending before the Guardian Court. Hence, it said neither party could be granted the minor's regular custody by declaring either of them as a guardian in terms of section 7 of the GWA.
Under section 491 Cr.P.C., the court must consider whether the person required to be produced was in illegal or improper detention. On the other hand, the GWA requires that the guardian of a minor should be appointed or declared when it is in the minor's best interests and that custody be given to him. The Guardian Court will decide what is best for the child. The provisions of section 491 Cr.P.C. are not available to appoint or declare anyone as a guardian or to determine the custody dispute permanently.
22. In Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 SC 758), the Hon'ble Supreme Court reaffirmed the above principles and ruled that the custody of minor children can be brought before a High Court under section 491 Cr.P.C. only if the following conditions are met: the children are of very tender ages; they have been snatched from lawful custody recently; and there is a genuine urgency in the matter. Even in such cases, the High Court may only grant interim custody of the children, leaving the Guardian Judge to decide on permanent custody.
23. Let's now turn to the case at hand. On 06.09.2022, Respondent No.3 filed an application under section 491 Cr.P.C. in the Sessions Court at Chunian to recover Husnain Ali from the alleged improper custody of the Petitioner. On 07.09.2022, when the SHO brought Husnain Ali before the Additional Sessions Judge, he heard the counsel for the parties and concluded that the Petitioner's custody was lawful and proper. He observed that the Petitioner was the minor's real father and natural guardian, duly looking after him, including his studies. On the other hand, Respondent No.3 was Husnain's step-sister who was married and living with her family. In the circumstances, it was in the minor's welfare that his custody should remain with his father, the Petitioner. The Additional Sessions Judge, therefore, dismissed the application of Respondent No.3 but did not stop at that and directed the Petitioner to provide her an opportunity to meet Husnain twice or thrice a month.
He exceeded his jurisdiction while making such a direction. In view of the law discussed above, the determination of visitation rights falls in the exclusive domain of the Guardian Court.
24. On 01.10.2022, Respondent No.3 filed an application before the Additional Sessions Judge, inter alia, praying that the order dated 07.09.2022 regarding meetings with Husnain Ali be enforced.
Since that part of the said order was without jurisdiction, her application was not competent, and all the proceedings based on it were also unlawful. Respondent No.3 cannot take benefit of the Petitioner's conceding statement that he made in those proceedings. It is axiomatic that when the basic order is devoid of legal authority and void, the entire superstructure raised thereon collapses.
Reliance is placed on Yousaf Ali v. Muhammad Aslam Zia and others (PLD 1958 SC 104); Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818); Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD 2008 SC 663); Justice Qazi Faez Isa and others v. President of Pakistan and others (PLD 2022 SC 119); Pakistan Peoples Party Parliamentarians (PPPP) and others v. Federation of Pakistan and others (PLD 2022 SC 574).
25. In view of the above, this petition is accepted and the impugned orders dated 07.09.2022, 08.10.2022, and 10.11.2022 are set aside. However, Respondent No.3 would be at liberty to approach the Guardian Court to enforce her rights.
1. C. Gordon Post, An Introduction to the Law. Cited by Ataullah Sajjad, J. in Muhammad Ajmal Khan v. Lt.-Col. Muhammad Shafaat and others (PLD 1976 Lahore 396 at p.460).
2. Kanu Sanyal v. District Magistrate, Darjeeling and others (AIR 1973 SC 2684)
3. Durga Das Basu, Commentary on the Constitution of India, 9th Edn, Vol.10, p.10388
4. https://www.brtiannica.com/topic/habeas-corpus
5. Durga Das Basu, Commentary on the Constitution of India, 9th Edn, Vol.10, p.10389
6. Halsbury's Laws of England, 4th Edn., Vol. II, Butterworths
7. Fazal Karim, Judicial Review of Public Actions, 2nd Edn., Vol.3, p. 1607
8. Muhammad Ajmal Khan v. Lt.- Col. Muhammad Shafaat and others (PLD 1976 Lahore 396)
9. Durga Das Basu, Commentary on the Constitution of India, 9th Edn, Vol.10, p.11073
10. American Jurisprudence, 2nd Edn. Vol. 39
11. This case was decided by the Supreme Court of Azad Jammu and Kashmir.