1. This petition in the nature of habeas corpus arises out of the facts stated below:- Mst. Muhammad Jan was married to A.I Asghar on 18-4-1981. From the marriage, a daughter Mst.
2. Haleema Saadia was born to them on 15-5-1982 and also a son Yasir Mahmood who is now stated to be of 5 years and 10 months. A.I Asghar died on 28-4-1989. Prior to his marriage with the petitioner, he was already married and had children from his first wife 'A ho is shown to have died in or about 1973. A.I Asghar suffered from a liver disease and was bed ridden for some time before he died. It is stated in the petition that a month prior to death of A.I Asghar, his brother Mir Akbar respondent No. 1, Naseer Ahmad and Pervez respondents 2 and 3 sons of A.I Asghar from his first wife turned out the petitioner from her husband's house and kept back Mst. Haleema Saadia and Yasir Mahmood with them. As said above, Mir Akbar is paternal uncle of the minors whereas respondents 2 and 3 are their step brothers. After having been turned out by the respondents, petitioner took refuge in the house of her father who is a lambardar of the village and owns some property also. It is stated that the respondents have no right whatsoever to keep away the minors from the petitioner who is their real mother and has clear right of hizanat under personal law. In this-background, petitioner filed petition under section 491, Cr.P.C. For recovery of the minors from the illegal custody of the respondents and for handing them over to her. This petition came up before me on 24-5-1989. A bailiff was deputed to recover the children for their production in Court on 25-5-1989 so that they could be dealt with in accordance with law. Bailiff of the Court visited the spot and recovered the children but as they were not willing to go to their mother, their custody was entrusted to one Abdur Razzaq, a respectable of the village, who has produced them in Court today.
3. Material facts are not much in dispute. Petitioner is real mother of two minors. Their father is dead.
4. Neither paternal-grand mother nor paternal aunts are alive. Respondents are living as a joint family and have a common mess. Real question which has agitated my mind is as to who should have the custody of the minors till dispute in regard thereto is settled by a proper forum i.e. Guardian Judge. On the one hand, there is real mother and on the other, are the claims of paternal uncle and step brothers. In competition between rival claims, naturally mother emerge successful.
5. Both the minors are of tender ages; girl is hardly of seven years and the boy is little less than six years. At this stage of their ages, in g absence of father who is no more living, mother alone can provide the necessary love and affection which children of such tender ages require for their smooth emotional upbringing. This is more so in case of the minor girl and still more true in case of the minor boy. Under Mahomedan Law, a mother is entitled to the custody of her male child till he has completed the age of 7 years and of her female child uptill she has attained puberty. No material defect has been pointed out in the personality of the mother. I have examined the children in Court. The boy is quiet and reticent. The girl however, showed no preference for her mother. They are too small to exercise preferences in regard to their welfare and custody. In this view of facts and background, the custody of minors is improperly held by the respondents as against clear preferential right of real mother. Everyone knows and no argument is required in support of it that there can be no proper substitute for the love and affection which a real mother can give to her children. Her own children must not be made strangers to her. Having regard to all the relevant facts and the true principles applicable thereto petitioner is found entitled to the restoration of the custody of her minor children and I propose to order accordingly.
6. SA./M-1419/L