' Statement of Mst. Shamim Mai has been recorded. Mst. Nasim Mai has filed this petition under section 491, Cr.P.C. for the recovery of her minor sister Mst. Shamim Mai who was forcibly taken away from her custody by the respondent with the assistance of the Police some time before the filing of the petition. Notice was issued to the respondent and he was directed to produce Mst.
Shamim Mai minor in Court.
3. The case came up for hearing .today, when Mst. Shamim Mai minor was produced in Court by the respondent who is her paternal-grandfather. In her statement recorded in Court today, she disclosed that after the death of her mother, she had been living with her sister and that it was only 10/12 days ago that she was taken away from the house of her sister by the respondent with the assistance of the Police. She further stated that she would prefer to live with her sister as her paternal-grandfather and paternal-grandmother did not allow her to see her sister.
4. Learned counsel for the respondent submitted that the present petition filed by Mst. Nasim Mai was not legally competent because the object of filing the present petition was to obtain the custody of the minor for which the proper course was to approach the Family Court as the matter fell within the exclusive jurisdiction of the said Court. In this connection he referred to the Schedule to the West Pakistan Family Courts Act, 1964 to show that the matter relating to the custody of children fell within the exclusive jurisdiction of the Family Courts in view of the provisions of section 5 of the West Pakistan Family Courts Act, 1964. In support of his arguments, learned counsel for the respondent referred to the case of Adnan Afzal v. Capt. Sher Afzal, PLD 1969 SC 187 where it was held that in view of the provisions of sections 5 and 20 of the West Pakistan Family Courts Act, 1964, question regarding the maintenance fell within the exclusive jurisdiction of the Family Courts and that the Magistrate had no jurisdiction to entertain, her or adjudicate upon the matter relating to maintenance under section 488, Cr.P.C. He also relied on the decision in Najma Sadiq Rasool v.
Munira Hamid Rasool and another 1973 P Cr. L J 98 where it was held that Family Courts had exclusive jurisdiction in the matter regarding custody of children in view of the provisions of section 5 of the West Pakistan Family Courts Act, 1964 and that a petition under section 491, Cr.P.0 for obtaining custody of child was not maintainable. Learned counsel for the respondent further submitted that it would not be in the interest and welfare of the minor girl to allow her to live in the house of her married sister when her father, paternal-grandfather and paternal-grandmother were alive and were entitled to her custody in preference to her sister.
5. Learned counsel for the petitioner on the other hand contended that the jurisdiction of this Court under section 491, Cr.P.C. was not affected in any manner by the provisions of section 5 of the West Pakistan Family Courts Act, 1964 and the Court had jurisdiction to make an order regarding the custody of a minor if it was found that the minor had been illegally detained by any person. In support of his above contention he referred to the decision of this in Begum Gulzar Khurshid Ahmad v. Commander Sajjad Akbar 1977 P Cr. L J 800, where after distinguishing the judgment of the Supreme Court in Adrian Afzal's case and considering the judgment in Mst. Najma Sadiq Rasool's case it was held that the jurisdiction of the High Court under section 491, Cr.P.C. in matters of custody of children was not taken away by the West Pakistan Family Courts Act, 1964. Learned counsel for the petitioner also repelled the argument advanced on behalf of the respondent that it would be against the welfare and interest of the minor to restore her custody to the petitioner as he submitted that the main question for determination in the present proceedings was not the welfare of the minor. The only question which this Court has to determine in proceedings under section 491, Cr.P.C. is whether any person has been detained illegally or not. In the instant case Mst. Shamim Mai minor was admittedly taken away forcibly by the respondent with the assistance of the Police as disclosed by her in her statement. She was obviously detained illegally and against her wishes by the respondent and allowing her to go with her sister would he a proper order in the circumstances of the case.
6. It is not necessary to determine whether the jurisdiction of this Court under section 491, Cr.P.C. has been ousted in view of the provisions of section 5 of the West Pakistan Family Courts Act, 1964 in matters relating to the custody of children. In the case relied upon by the learned counsel for the petitioner, the learned Judge had also taken into consideration the constitutional jurisdiction of this Court which could be invoked even if it was found that the power under section 491, Cr.P.C. to issue an order relating to the custody of children was no longer available after the enactment of the West Pakistan Family Courts Act, 1964. The crucial point for determination in the present case is no doubt whether Mst. Shamim Mai has been illegally detained by the respondent or not. Mst.Shamim Mai has stated that she was forcibly removed from the custody of the petitioner by the respondent with the assistance of the Police. The petitioner, however, did not take any action against the respondent by filing a complaint against him and the Police officials who had come to her house and had forcibly taken away Mst. Shamim Mai from her custody. It is, therefore, not clear under what circumstances Mst.Shamim Mai was removed from the custody of the petitioner. The respondent is her paternal-grandfather in whose house she is presently living. Her paternal- grandmother also lives in the s- house. Under the Muslim Law, they appear to be entitled to the custody of the minor in preference to the petitioner. Under these circumstances, it is difficult to say that the respondent has illegally detained his minor grand-daughter. Mst. Shamim Mai has shown her willingness to live in the house of her grand -parents provided they allow her to see her sister.
The question as to who is entitled to the custody of the minor girl cannot be determined in the present proceedings. Hence the proper forum for this matter is the Family Court. The contention of the learned counsel for the respondent that it would not be proper to restore the custody of the minor to the petitioner who is already married and is living in the house of her husband cannot be brushed aside. But at the same time it would not be proper to compel the minor girl to go with the respondent as she has stated towards the end of her statement that she does not want to live in the house of her grand-parents. The proper course under the circumstances appears to be that the minor be sent to Darul Aman Multan and the parties should approach the Family Court having jurisdiction in the matter for obtaining the custody of the minor. Mst.. Shamim Mai is accordingly directed to be kept in Darul Aman for the present and the parties are directed to initiate necessary proceedings in the Family Court having jurisdiction in the matter for obtaining the custody of the minor. Necessary expenses for the maintenance of the minor during her stay at Darul Aman shall be paid by the respondent. This petition stands disposed of.