SYED SHAHID BAHAR, J. Revision petition at hand is filed by the petitioner Hira Mashooq against the decision of the learned Sessions Judge, Mirpur, dated 08.06.2024, through which her application filed under Section 491, Cr.P.C qua restoring the interim custody of the alleged detenue minor, who was forcibly removed from her custody was turned down.
2. Facts skimming the surface are that petitioner remained in marital ties with Sufian Bashir, (respondent No.3) for a short term but on account of certain difference the story of marital life came to an end Alleged detenue minor Ghaziyan is only issue from the said wedlock (which meet the fate of break up), father of the minor is living abroad, age of the minor is approximately 5 years.
As per stance of the petitioner the minor who was living with her in her natural guardianship was removed from her custody forcibly in guise of an agreement (manufactured in her ailment under undue influence) and ultimately handed over to the grandfather who himself is a man of old age.
Application was turned down by the Court below, through the impugned order dated 08.06.2024, hence, the instant revision petition.
3. In pursuance of production order the detenue/minor was produced yesterday, case was adjourned and now taken up for arguments and decision.
4. Heard, record perused.
5. Counsel for the petitioner vehemently contended that as no other efficacious and immediate remedy was available, thus application under Section 491, Cr.P.C was filed qua production of the minor and his interim custody to the petitioner, but the Court below erred in law by declining the prayed relief while on other hand, counsel for the respondent staunchly opposed the revision petition and argued that decision under revision is perfectly in accordance with law. He added that petitioner is estopped to claim custody of the minor on account of her waiver qua custody.
6. Be that as it may variety of powers had been conferred upon High Court under Section 491, Cr.P.C inter alia to set at liberty a person illegally or improperly detained in public or private custody, within its limits.
7. Jurisdiction of the High Court is duplex under Section 491, Cr.P.C. i.e. to deal with a person (sought to be produced) within its appellate criminal jurisdiction according to law and secondly to set the detenue at liberty if found to be illegally or in properly detained, or for that matter found confined in a manner not warranted by law.
8. Be that as it may, under the four corners of Section 491, Cr.P.C this Court has to focus on the points, as wither the minor who was deprived from the womb of mother (natural guardian) and given under the custody of grandfather without applying guardianship of the minor from relevant guardian court is warranted by law and in this context his custody is proper by any way.
9. As per record the minor was removed from the natural guardianship of the petitioner, this Court under Section 491, Cr.P.C cannot sit over the matter to decide the custody of the minor permanently as it is within jurisdictional domain of the guardian Court, however as a stopgap measure this Court in the interest of minor, keeping in view his welfare can decide his interim custody.
10. Grandfather cannot be preferred over natural guardian i.e. mother, I think that in such like eventuality when father is also abroad, mother would be in better position to maintain and look after child and provide him proper livelihood particularly when the mother (petitioner) took a plea that respondent have removed the custody of minor forcibly.
11. Trite law that proper fora for adjudication of the matter qua custody of the ward/minor is the guardian Court 'having jurisdiction under Guardian and Wards Act, 1890, but despite fact Court is blessed with powers to pass an order qua interim custody of the minor on tentative analysis of the facts, circumstances. warranting issuance of such order.
12. Thus, it can safely be held that Court is not armless in the matter. Conscious of the Court is attracted pertaining to interim stopgap arrangement for the welfare of minor and in the larger interest of justice.
13. Question whether the mother of the minor properly maintained the minor and after her marriage with another person whether she has lost her right of custody and also what was in the interest and welfare of the minor, required thorough evidence to be recorded which could only be done before a guardian Court.[1]
14. Yesterday, on direction of the Court minor was produced before the Court, his grandfather who is a man of old age also appeared in person. Seemingly the minor was under pressure and frightened prior to any reply he was looking upon the face of his grandfather, unfortunately, ex- facie I have not found the minor child in good condition.
15. Tug of war regarding custody of the minor seems founded on ego, which is swallowing up the childhood of minor, thus, Court cannot remain silent spectator, as it is a question of safeguard and execution of the fundamental rights of the minor (stamped with Constitutional guarantee) as well. Respecting and enforcing his rights I suggest for him lap of mother which is a heavenly place for him. (Underlining is mine)
16. So far as the stance of the respondent that the petitioner himself has waived/quit the right of custody through an out of Court agreement, thus now she is not entitled to ask for custody of the minor. This stance is not tenable in law.
17. Firstly as it is a matter of enforcement of Constitutionally guaranteed rights of minor who under law is be given the custody of mother as a natural guardian (until the guardian Court finally decide the matter of legal custody of the minor). Secondly, as the age of minor is yet approximately 5/6 years, he father is admittedly abroad. Both parents are natural guardian of the minor and entitled for interim custody as per facts and circumstances, but as in the matter in absentia of one of the natural guardian particularly in such tender age minor should not usually be given the interim custody of someone else other than mother.
18. Jurisdiction of this Court is duplex under Sections 491 and 561-A, Cr.P.C, depriving a minor from the custody of one of the natural guardian in guise of any agreement in way to give him in the custody of someone else other than natural guardians is improper Thus, I am inclined to give the minor in the interim custody of the real mother as a natural guardian, forthwith, subject to furnishing a guarantee that she will not remove him from the territorial jurisdiction of guardian Court, Mirpur, however order is tentative in its nature quo interim custody and time being as temporary measures subject to final determination by the guardian Court (if opted by the parties).
19. If a person produced was a minor the Court could make over his custody to the guardian and if he was major then only jurisdiction which lay with the Court was to set him at liberey.[2]
20. The present layer of struggle on part of the petitioner is for restoration of her natural custody by removing from the improper custody.
21. Objection of the non-applicant qua dismissal of the application on the strength of argument that she had already solemnized second marriage, thus she is not entitled for custody is discarded as firstly the petitioner has denied the stance and produce divorce-deed, secondly if so then whether the mother of the minor is entitled for permanent custody is a matter finally to be decided by the guardian Court, where all such points like interest and welfare of the minor will be taken up and required to be decided in light of the evidence. Let the matter to be decided by the guardian Court independent of the tentative findings of this Court.
22. Notwithstanding that a person may have a right to move the guardian Court for custody of minor, yet he can in appropriate case also approach High Court for restoration of custody of minor to the person to whom it rightly belongs. Any, arrangement made by the High Court, however would be interlocutory and subject to final decision, if any of the Guardian Court.[3]
23. Trite that there cannot be any substitute for a mother and the lap of mother is God's own cradle for child. Snatching a child of such a tender age from lap of the mother without a legal sanction by way of getting guardianship Certificate amounts to mental torture to the minor and mother, restoration of interim custody in favour of mother in such like cases is justified as Lap of mother is a heavenly place for a child of tender age, that too she has acquired natural and inherent right to keep her child close to her bosom. (Emphasis supplied)
24. For the above multiple reasons, petition at hand is disposed of as infra;
(1) Decision impugned, herein, is hereby set-aside.
(2) Minor Ghaziyan is directed to be given in the interim custody of his mother Hira Mashooq, forthwith.
Corpus be handed over in open Court. In this regard an affidavit has also been submitted by the petitioner-Hira Mnshooq that although she contracted second marriage same has come to end, copy of divorce deed has also been attached with the said affidavit. She sworn that she will not contract marriage till the age of majority of the minor, and she will give education to minor-child in a well reputed school. She also sworn in another affidavit that she will arrange the meeting of her minor child to his grandfather once in week and shall obey the Court's order. Therefore, petitioner is directed to comply with the undertaking mentioned above and she will not remove the minor from the territorial limits of the guardian Court Mirpur. Finding of this Court qua interim custody are tentative.
Order announced in the open Court. File shall be kept in archive:
3. PLD 1995 Lah. 151, PLD 2003 Kar. 54, 2007 YLR 1028, PLD 2009 Kar. 325, 2021 YLR 1267