1. ZULFIQAR AHMAD KHAN, J. Through this petition, the petitioner father has assailed the edict rendered by learned District and Sessions Judge East, Karachi in HCP No.76/2024 on 24.02.2024 ("impugned Order").
2. Learned counsel for the petitioner premised his case on the argument that the respondent No.2/mother initiated proceedings under Section 491 Cr.P.C for recovery of minors who were in the custody of petitioner father but the learned respondent No.1 through the impugned order directed the petitioner to hand over the custody of the minor to the respondent No. 2/mother. He further contended that the custody of the minors with petitioner father cannot be held as illegal and that the petitioner father is also natural guardian, therefore, the impugned order be aside.
3. Since this is a fresh petition and fixed before the Court in a category of "Fresh Case". I have heard learned counsel for the petitioner at length and have also scanned the available record. The learned respondent No.1 exercised its jurisdiction under Section 491 Cr.P.C. therefore, it is considered expedient to reproduce Section 491 of Cr.P.C here under:-
491. Power to issue directions of the nature of a habeas corpus:
(1) 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 limit be set at liberty ;
(c) that a prisoner detained in any Jail situated within such limits be brought before the 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 purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of Cepi Corpus to a writ of attachment.
4. (1A) The High Court may, by general or special order published in the official Gazette, direct that all or any of its powers specified in clauses (a) and (b) of subsection (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 Sessions Division.
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under any law providing for preventive detention.
5. The jurisdiction of a court adjudicating a habeas corpus petition in relation to a child cannot be confused with an ordinary habeas corpus petition where the focus of the court is on the recovery of the person illegally detained in order to uphold his Article 9 rights to life and liberty. In case of a minor, his right to liberty under Article 9 of the Constitution entails a right to be in the custody of the person who ought to have the custody of the minor in accordance with law, as till such time that the minor attains the age of majority he/she has a right to be taken care of whether by parents or relatives or the State. And consequently the focus of the court in a habeas corpus petition filed on behalf of a child is not just on illegal detention but on ensuring that the interim custody of the minor pending its determination by a Guardian Court is being dealt with in accordance with law.
6. That a habeas corpus petition filed for the lawful treatment of a minor is not to be confused with abduction or illegal detention of an adult and the consideration to be borne in mind in such matter is the welfare of the minor as recognized across common law jurisdictions.
7. It is stated in the Halsbury's Laws of England, Fourth Edition, Vol.24 (para 511) that: "511. ...Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father."
(ii) Baily states in Habeas Corpus, Vol. I, (PP.581) that "The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a presence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother."
(iii) In McGrath, Re, (1893) 1 Ch 143, it was observed that: "The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word 'welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded."
(iv) American Jurisprudence, Second Edition, Vol. 39 (para 148) notes that: "Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does, not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any more legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just.
8. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court's view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence, a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child's welfare is the supreme, consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parent are entitled to consideration."
(v) In Howarth v. Northcott (152 Conn. 460), the Supreme Court of Connecticut held that: "The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statues, 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."
9. The law laid down in Pakistan is in sync with the jurisprudence referred to above as it is now settled that in exercise of jurisdiction under section 491 of C P.C, the welfare of the child is the primary and predominant consideration.
10. It is settled by now that jurisdiction of a court under section 491. Cr.P.C is not to be confused with the jurisdiction vested in the guardian court under the Guardians and Wards Act, 1890 and consequently it is not for the court while exercising jurisdiction under section 491 Cr.P.C to determine the entitlement of the parent to retain the custody of a minor on a permanent basis.
11. It was held by the august Supreme Court in Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) that section 491, Cr.P.C and the provisions of Guardians and Wards Act, 1890 are neither mutually exclusive nor overlap or destroy one another. Thus to the extent of question of permanent custody of a minor, the matter falls within the domain of the guardian court pursuant to the provisions of the Guardians and Wards Act 1890. And the remedy available under section 491, Cr.P.C is not a remedy available for declaring or determining the question of custody of a minor on a permanent basis. However, courts are obliged to exercise their jurisdiction under section 491 Cr.P.C in a proper case where the question of treatment of a minor in accordance with law comes before the court, pending determination of custody by the guardian court.
12. It was held by the august Supreme Court in Nisar Muhammad v. Sultan Zari (PLD 1997 SC 852) that availability of a remedy under the Guardians and Wards Act, 1890 is no bar to exercise of jurisdiction under section 491, Cr.P.C. and the availability of such remedy is not in and of itself a valid ground for refusing to interfere in the custody of minor by a parent who is otherwise not entitled to such custody. In para 9 of the said judgment, the following was held: "In the judgment of Mst. Rizwana Bokhari's case (supra), Muhammad Munir Khan, J. (as his Lordship then was) had rightly laid down the law which we are inclined to approve that on examination of the various provisions of Muslim Law, the Criminal Procedure Code, particularly its section 491, Cr.P.C. and sections 361 and 363 of the P.P.C. indicate that mother is entitled to 'hizanat' of her male child below the age of 7 years, failing that the mother's relations under Muslim Personal Law are entitled to the custody of the minor. Since the two male minors in this case are admittedly below 7 years in age and the three females have not yet attained puberty all the three being less than 8 years, the respondent is, therefore, prima fade entitled to 'hizanat' of all the 5 for the limited purpose of section 491, Cr.P.C. at the moment and the rights of the petitioners to the custody of the aforesaid minors has not accrued so far. In these circumstances, the custody of the aforesaid minors with the petitioners was, therefore, rightly declared illegal or at least improper by the learned Chief Justice of the Peshawar High Court. The learned Chief Justice was also justified to have expressed more than once that ultimate determination of entitlement of the custody shall of course lie with the Guardian Judge to whom the parties were directed to approach, if they so desired.
13. The latest view of the august Supreme Court was recorded in Mirjam Abberras Lehdeaho v.
14. Station House Officer, Police Station Chung, Lahore and others (2018 SCMR 427), wherein it: was held that: "22. The Guardian Court is the final Arbiter for adjudicating the question of custody of children.
15. However, where a parent holding custody of a minor lawfully has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody white the matter is sub judice before Guardian Court. Therefore, in exceptional cases (like the instant case), where the High Court finds that the best interest and welfare of the minor demand that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the Court is not denuded of jurisdiction to pass appropriate orders under section 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court. While the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the minor, the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffers owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting ox refusing an order to restore interim custody by the High Court. The two provisions of law namely section 491, Cr.P.C. and section 25 of the Guardians and Wards Act deal with two different situations. As such, the question of ouster of jurisdiction of the High Court on account of provisions of section 12 or 25 of the Guardians and Wards Act or pendency of proceedings under the said provisions does not arise. There is no overlap between the two provisions as both are meant to cater for different situations, the first to cater for an emergent situation, white the latter to give more long term decisions regarding questions relating to guardianship of minors keeping in view all factors including their best interest and welfare."
16. In a matter involving the right of a minor to be dealt with in accordance with law under section 491 of Cr.P.C, the question before the Court is not whether a child has been abducted by a parent in the ordinary sense. During the subsistence of marriage both parents have joint custody of their minor children. In the case of a matrimonial dispute or altercation between the spouses, it is not necessary that the children must be physically snatched from one parent to bring the matter within the scope of section 491 of Cr.P.C. In the event that a husband subjects his wife to abuse forcing her to leave the matrimonial home, the court cannot turn a blind eye to the circumstances in which the shared custody of the children was transformed into sole custody. In such circumstances, for purposes of section 491, Cr.P.C, it is not for the court to sit in judgment over who is at fault in the matrimonial dispute. but how would the welfare of a child be best preserved, in the interim, when joint custody of the child shared by both parents is not an option.
17. For a considerable period the "Tender Year, Doctrine" has guided the exercise of discretion by courts in custody matters, where courts assumed that healthy development occurred when young children were raised by their mothers. However, contemporary psychological and sociologically research questions the assumption that the mother is necessarily the best parent for raising a child in all circumstances (see for example Santrock and Warshak, Father Custody and Social Development in boys and Girls, 35 J. Soc. Issues 112 (1979); Watts v. Watts, 77 Misc.2d 178, 181-182, 350 N.Y.S.2d 285, 289-90, (Fani.Ct.1973)). Research is now pointing to the need for evolving a more gender-neutral approach to child welfare given changing social structures and two-career families etc. One of the questions to ask while considering the child's welfare in a custody matter in order to accord continuity to such welfare is which of the parents is the primary caregiver. The parent who maintains the strongest bond with the child as a result of daily attention to the child's physical and psychological needs is regarded as the psychological parent (see J. Goldstein, A.
18. Freud A. Solnit, Beyond the best interests of child (1979)). In a nut shell, an important consideration for the court while addressing the question of interim custody in the child's welfare is ensuring the continuity of care for his/her physical and psychological needs by the parent who customarily provides such care.
19. In the instant matter the learned respondent No.1 while passing the impugned edict observed that it minors are of tender agent therefore keeping in view their welfare, their interim custody was handed out to the respondent No.2/mother, therefore, this Court also finds no infirmity in the reasoning of the learned Sessions Judge/respondent No.1 recorded in the impugned order whereby the petitioner father was also directed to approach to the Guardian Court for permanent custody.
20. In view of the above rationale and deliberations, the instant petition is dismised alongwith pending applications.