' This petition under section 491, Cr.P.C. Has been moved by Mst. Rizwana Bokhari for the recovery of Faheem Raza Shah, a minor aged about 6 years from the alleged illegal and improper custody of Abdul Majeed Shah and Muhammad Ibrahim Shah, respondents.
2. Faheem Raza Shah, hereinafter referred to as minor is admittedly below 7 years in age. His father Muhammad Ismail Shah died on 19th July, 1983. Abdul Majeed Shah, respondent No,1, is the real grand father and Muhammad Ibrahim Shah, respondent No,2, is his paternal-uncle.
3. It has been alleged in the petition that after the death of the husband of the petitioner the minor was living with the petitioner. The respondents asked the petitioner to marry respondent No,2, the brother of her deceased husband but she refused. On this the respondents took away forcibly from her custody the minor aged 5 years.' So much so they did not allow the petitioner to see the minor.
Since the parties are closely related I instead of deputing a bailiff/ police to recover the detenu, directed the respondents to produce the minor who has been brought before the Court accordingly.
5. On 8th October, 1983 at the request of the counsel for the parties I adjourned the hearing of the case to enable them to settle the dispute out of the Court but no compromise could be arrived at.
6. The learned counsel for the petitioner submits that since the petitioner refused to bow before the desire of the respondents and refused to marry respondent No,2, therefore, the respondents forcibly removed the minor from the custody of the petitioner and are detaining him illegally and improperly. He relied on the affidavit of the petitioner to this effect. Relying on case, reported as Mst.
Wallan v. Sultan and 3 others 1977 PCr.LJ 1073, Mst. Gullan v. Allah Ditta 1984 P Cr. L J 1047 and Safia Bibi v. Ghulam Hussain Shah PLD 1970 A J & K 13 the learned counsel submitted that it is a fit case for the issuance of direction in the nature of writ of habeas corpus.
' As against this the learned counsel for the respondents vehemently opposed the petition and raised following points:-
(i) that the allegations of forcible removal of the minor from the custody of the petitioner are baseless inasmuch as after the death of Muhammad Ismail Shah, the minor had remained with the petitioner and in fact he was brought up by respondent No,1 since birth. Furthermore, there was a family settlement whereby Faheem Raza Shah was given to the custody of the respondents through written agreement, dated 2nd August, 1983, duly signed by the petitioner. To substantiate this the learned counsel produced, photostat copy of the written agreement, dated 2nd August, 1983 (marked 'A') and photostat copy of the application, dated 13th August, 1983 submitted by the petitioner to Senior Vice-President (Funds) National Bank of Pakistan (marked 'B'). It may be mentioned here with advantage that when these documents were shown to the petitioner she disowned the documents. She, however, admitted her signatures but explained that the same were obtained by the respondents through misrepresentation and fraud.
(ii) that the petitioner and her deceased husband being Shia Muslims the petitioner is not entitled to the custody of the minor who is the above the age of 2 years. It may be mentioned here usefully that in the detailed written statement filed by the respondent (marked 'C') and in the application for appointment of guardian of the person of minor which was filed by the respondent No,1 on 12th October, 1983, during the pendency of this petition, this plea has not been raised by them.
(iii) that the petitioner is not-well off and not-well housed whereas .The respondents are able to provide better educational facilities and more comfort to the minor and as such it is for the welfare of the minor that he should remain with the respondent No,1 . Two certificates (marked 'D' and 'E') issued by the Principal, English Model School Bahawalpur, to the effect that the minor was got admitted in the school by respondent No,1 and was regularly attending the school, have been produced by the respondents.
(iv) that the dispute relates to the custody of a minor child and the respondents being grand father and paternal-uncle, the matter is essentially one for the guardian Judge to decide and that a petition for the appointment of respondent No,1 as a guardian of the minor having actually been filed on 12th October, 1983, this Court has no jurisdiction to pass any order under section 491, Cr.P.C.
Photostat copy of the petition and application under section 12 of the Guardian and Wards Act for the interim custody of the minor daughter Saeeda Sane Bokhari aged 24 years to respondent No,1 have been produced by the respondents. The copies are marked as 'F and 'G'. To justify his contentions the learned counsel has relied on cases Mst. Aisha Bibi v, Nazir and 2 others 1981 5 C M R 301, Mukhtaran V. Muhammad Anwar, etc. 1979 P Cr. L J Note 151 R.96, Mst. Naidari Begum v. Jawad Ali A 1 R 1935 All. 55, Mst. Zulekhan v. Niamatullah and another 1981 P Cr. L J 1230, Najma Sadeque Rasool v. Munira Hamid Rasul and another 1973 P Cr. L J 98, Ch. Noor Hussain v. The State 1983 P Cr. L J 442, and Begaan v. Abdul Hamid 1983 P Cr. L J 1470.
7. I have considered the arguments advanced by the learned counsel with care. As for the factual aspect of the case I find that the facts that the petitioner is the real mother of the minor, that the father of the minor has died, that the minor is below the age of 7 years, that the respondents are the grand father and paternal-uncle of the minor, that the mother of the minor has not contracted second marriage so far, that in the petition under section 491, Cr.P.C., in the written statement and in the petition filed by respondent No,1 before the Guardian Judge for appointing him as a legal guardian of the minor, the plea that the parties are Shia Muslims, has not been raised, that at the time of the filing of this petition under section 491, Cr.P.C. The minor was in the custody of the respondents, that the minor has been brought before this Court in compliance with its order, dated 2nd October, 1983 and that during the pendency of thi.s petition respondent No,1 has filed an application before the Guardian Judge for his appointment as guardian for the minor as well as of the minor daughter Saeeda Sana Bokhari aged 24 years who is presently with the petitioner, are the admitted and undisputed facts of the case.
' The facts that there was a family settlement through agreement, dated 2nd August, 1983, that the petitioner had moved application, dated 13th October, 1983 before the Senior Vice-President (Funds) Finanace Division, National Bank of Pakistan, that after the death of the father of the minor the minor had remained with the petitioner or with respondent No,1, the allegations that the respondents had forcibly removed the minor from the custody of the mother/petitioner that the parties are Shia Muslims and that the welfare of the petitioner lies in the minor living with respondent No,1, are the disputed facts of the case which need inquiry and deeper appreciation.
Since the High Court shall not embark on inquiry particularly when during the pendency of this petition the respondent No,1 has filed application for the appointment of guardian of the minor and the disputed facts are to be inquired into and the question of the welfare of the minor has to be gone into by the learned Guardian Judge, therefore, I am of the view that I should neither discuss the disputed facts nor express any opinion thereon lest it may prejudice the merits of the petition already pending adjudication before the learned Guardian Judge. I, therefore, propose to decide this petition on the admitted facts in accordance with law.
8. To my mind the questions which fell for decision are as under:-(a) Whether the minor was illegally or improperly detained by the respondent ?
(b) If the Court finds that the minor who has been brought before it was not illegally or improperly detained then what order should be passed regarding the custody of the minor in the instant case ?
(c) Whether in the circumstances of the case High Court can exercise its powers under section 491, Cr.P.C. Or not?
' For the proper appreciation of these questions the relevant law may be reproduced usefully.
Muhammadan Law.
(i) Para.
352. Right of mother to custody of infant children.--The mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
' Shia Law--Under the Shia Law, the mother is entitled to the custody of a male child until he attains the age of two years, and of a female child until she attains the age of seven years. After the child has attained the above-mentioned age, the custody belongs to the father. If the mother dies before the child has attained that age, the father is entitled to the custody. On the death of both the parents, the custody belongs to the father's father. It is doubtful to whom the custody belongs in the absence of the father's father.
353. Right of female relations in default of mother.--Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:-
(1) mother's mother, how high soever;
(2) father's mother, how high soever;
(3) full sister;
(4) uterine sister;
(5) (consanguine sister);
(6) full sister's daughter;
(7) uterine sister's daughter;
(8) (consanguine sister's daughter);
(9) maternal-aunt, in like order as sister; and
(10) paternal-aunt, also in like order as sisters.
354. Females when disqualified for custody.--A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody-
(1) if she marries a person not related to the child within the prohibited degrees (Ss.260-261), e.g. a stranger, but the right revives on the dissolution of the marriage by death or divorce; or
(2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or
(3) If she is leading an immoral life, as where she is a prostitute; or
(4) if she neglects to take proper care of the child.
355. Right of male paternal relations in default of female relations.-In default of the mother and the female relations mentioned in section 353, the custody belongs to the following persons in the order given below;--
(1) the father;
(2) nearest 'paternal grand father;
(3) full brother;
(4) cosanguine brother;
(5) full brother's son ;
(6) consanguine brother's son;
(7) full brother of the father;
(8) consanguine brother of the father;
(9) son of father's full brother; and (10)son of father's consanguine brother.
357. Right of father and paternal-male relations to custody of boy over seven and of -girl who has attained puberty.--The father is entitled to the custody of a boy over seven year's of age and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal- relations in the order given in section 355 above, and subject to the proviso to that section. ' lf there be none of these, it is for the Court to appoint a guardian of the person of the minor.
(ii) Cr . P .0 .
Section 491.--(i) 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.
(iii) P.P.C.
361. Kidnapping from guardianship--Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
363. Punishments for kidnapping--Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
9. The examination of the above provisions of law indicate that mother is entitled to Hizanat of her male child below the age of 7 years, failing the mother the relations 1 to 10 given in para. 353 of the Mahomedan Law are entitled to the custody of the minor and that in para.353 the grand father and the paternal-uncle do not figure at all. Since the minor is admittedly below seven years in age, the mother, is therefore, entitled to Hizanat of the minor and the right of the respondents to the custody of the minor has not accrued so far. In these circumstances the custody of the minor by the respondents has to be declared illegal or at least improper. Question (a) as formulated above is answered accordingly. So far as questions (b) and (c) are concerned, in this connection I can do no better than to reproduce the observation made by the Supreme Court in Full Bench judgment titled Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6. At page 8, the Honourable Supreme Court observed:- "The High Court has two-fold jurisdiction under this section (491 Cr.P.C.) (i) to dealwith a person within its appellate criminal jurisdiction according 'to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not."
' It is thus obvious that even this Court comes to the conclusion that the minor was not illegally or improperly detained yet since the minor has been brought before, it, therefore, under subsection 491 (1)(a), Cr.P.C. The High Court is quite competent to deal with him by making over the custody of the minor to the guardian. I have already found in para. 9 of this judgment that the mother being lawful guardian of the minor is entitled to his custody till such time he attains the age of seven years. It is also well settled that ordinarily the mother is entitled to Hizanat of a minor male child below the age of seven years, and that the presumption is that the welfare of the minor lies in his living with his mother. This presumption is, no doubt, rebuttable but in the case in hand there is nothing to rebut this presumption. Since the minor has been brought before the Court and under section 491(1)(a), Cr.P.C. Has to be dealt with according to law, therefore, in both the eventualities whether he is being illegally and improperly detained by the respondents or not this Court is well- within its authority to make over his custody to the mother if the circumstances so warrant.
10. Coming to the contentions raised by the learned counsel for the respondents I find that the contentions raised at Nos. 1, 2 and 3 require factual inquiry which cannot be made by this Court under section 491, Cr.P.C. Furthermore, a case for the appointment of guardian of the minor having already been filed by the respondents it would be in the fitness of things if the disputed facts are left for the decision of the learned guardian Judge. As for contention No,4, I have already held that this Court is quite competent to deal with the minor under section 491 (1)(a), Cr.P.C. As held by the Supreme Court in the case referred to above. I am also of the view that since the remedy provided under section 491, Cr.P.C. Is most efficatious and speedy one, therefore, in appropriate cases particularly when the mother is deprived of the custody of the minor child below the age of seven years and she has not contracted second marriage, the writ of Habeas Corpus under section 491, Cr.P.C. Would be the most appropriate remedy and the High Court may not stay its hand on the ground that the dispute for the custody of the minor can be well-adjudicated by the guardianse judge. Keeping in view the delay which occurs in disposal of the cases before the subordinate Courts, the possibility that by the time the petition for the appointment of guardian is finally decided the minor might attain majority, cannot be excluded. It would be in the interest of the mother and the minor that this Court may come to their rescue in exercise of its powers under section 491, Cr.P.C. The case-law cited by the learned counsel for the respondents being distinguishable is not applicable to the facts and circumstances of this case. The superior Courts have expressed for and against opinion on the question whether any dispute relating to the custody of a minor child, the High Court can exercise its powers under section . 491, Cr.P.C. Or not.
Each case has, therefore, to be decided on its own facts.
11. On 15th October. 1983 I had asked the minor as to with whom he would-like to live. He desired to live with respondent No,1 the grand-father. Despite this I am inclined to make over the custody of the minor to his mother for the reasons (i) that a desire expressed by a minor to live with either of the party is not sufficient by itself to control the question of his custody, (ii) he being below the age of seven years, his consent is immaterial, (iii) that from appearance he.Is not old enough to form an intelligent preference and that he-remained under the influence of respondent No,1.
' Resultantly the respondents are directed to make over the custody of Faheem Raza Shah, minor, to Mst. Rizwana Bokhari, the petitioner, in the Court.
12. Before parting with the judgment I would like to add that this order is without prejudice to the orders which may be made by the learned Guardian Judge in petition for the appointment of guardian pending before him. He would pass independent order uninfluenced, by anything said in this judgment.
' When I announced the order respondent No,1 expressed his apprehension that in order to frustrate the proceedings pending before the learned Guardian Judge for the appointment of the guardian of the minor the petitioner would remove him out of the jurisdiction of the Guardian Judge and the appellate jurisdiction of the Lahore High Court. On this Nazar Hussain Shah, the maternal- grandfather of the minor showed his inclination to furnish security in the sum of Rs,2,00,000 to the effect that minor would be produced before the learned Guardian Judge as and when required. He also undertakes that he would arrange the meeting of the minor with the respondents once a week at the residence of Din Muhammad Shah, Councilor Ward No,1, Bahawalpur.