' This is a habeas corpus petition for the recovery of Mst. Safia Bibi aged 8 years by her mother, the petitioner. The detenu child, Safia Bibi has been produced in the Court by the respondents, her half- brothers.
2. The respondents have admitted that the detenu Mst. Safia Bibi was in the custody of her mother and that they had taken her away from her mother about two years ago on some pretext, and had not returned her to the petitioner, her mother, after that. The respondents further stated that they were not willing to hand over the alleged detenu Mst. Safia Bibi to her mother as they apprehended that she would sell her.
3. A peculiar aspect of the case may be noted here that the detent child Mst. Safia Bibi shows no inclination, in fact does not want to go with her mother, the petitioner but wants to go with her half- brothers, the respondents. It may be explained away by the fact that the respondents' custody has prejudiced the child against her mother.
4. On the other hand, it has been stated on behalf of the petitioner that the child was taken away on a pretext and was being forcibly kept by the respondents ever since as they wanted the property in her name to be transferred in their favour.
5. The learned counsel for the respondents has contended that as the petitioner has already applied for the custody of the detenu in the Court of a Guardian Judge, Bahawalpur, therefore, the present habeas corpus petition is not maintainable.
6. On the other hand, it has been contended on behalf of the petitioner that the case before the Guardian Judge is not only in respect of the custody of the detenu child but also for appointment of the petitioner as her Guardian in respect of the property in the name of the detenu.
7. The learned counsel for the respondents has opposed the habeas corpus petition on the following grounds:- ,(i) That the alleged illegal and improper custody is not of recent occurrence.
(ii) That the detenu child, Mst. Safia Bibi is happy with her step-brothers, the respondents, and is being looked after properly.
(iii) That under the circumstances, the question of the custody of the detenu should be left to the Guardian Judge to decide.
8. In support of his contentions the learned counsel for the respondents relied upon Mst. Aisha Bibi v. Nazir and others 1981 SCMR 301 wherein it was held that as the, dispute between the parties was essentially regarding the custody of a girl and no question of forcible detention arose, therefore, it was essentially for the Guardian Judge to decide and that no justification was made out for issuing a direction in the nature of writ of habeas corpus.
' However, this case is distinguishable from the present case as herein the girl was of 18 years of age and had twice made statements in two different habeas corpus petitions that she wanted to stay on with her paternal-uncle and did not want to go with her maternal-grandmother, the petitioner, and that, therefore, there was no question of her being detained illegally or improperly.
' The second authority cited by the learned counsel for the respondents is Asif Mowjee v. Mst.
Fatima Mowjee PLD 1987 Kar.
239. The reliance was placed on this authority to seek support for the principle, as stated therein at para. 3 of the page 241, that generally where the applicant has another remedy open to him under which rights of the parties can far more satisfactorily be settled then an application under section 491, Cr.P.C. Is not maintainable.
' However, this case also is distinguishable from the present case as herein the petitioner had sought the custody of a minor son from the mother through habeas corpus petition on the ground that the minor son being of more than 7 years, the mother could not hold on to his custody.
9. It shall be appropriate to dilate at length on the facts of the present case that distinguish it from the facts and circumstances of the authorities referred to above, cited by the learned counsel for the respondents. In the present case it is an admitted fact that the petitioner is the real mother of the detenu child, it is also admitted by the respondents that they are the step-sons of the petitioner and as such only half-brothers to the detenu, it is further admitted by the respondents that there is at least 4 Kanals of land in the child's name. Therefore, these facts make it abundantly clear that the cases cited by the learned counsel for the respondents has no relevancy to the present case.
' On the other hand, the learned counsel for the petitioner has contended that under Hizanat the custody of a minor daughter has to be with the mother, as should be the case herein. Secondly it was contended that the respondents had taken away the detenu on false pretext and on the strength of force had refused to hand her back to the mother, the petitioner. It was further contended that, if for arguments sake, it was to be accepted that the question of custody of a child can be determined only by the Court of the Guardian Judge, even then in the present case the respondents had no locus standi to seek the custody of the child as they were her step-brothers and were not in that preferable relationship which has been laid down by the Muslim Personal Law for being entitled to the custody of a minor girl. To support his contentions the learned counsel for the petitioner relied upon Mst. Rizwana Bokhari v. Abdul Majeed Shah and another 1984 P Cr. L J 2582 a case under section 491, Cr.P.C. Wherein it was held that the Honourable High Court may not refuse to grant such a writ merely on the ground that the dispute for custody of minor can be well adjudicated by a Guardian Judge and that, however, each case has to be decided on its own merits. It may be relevant to reproduce here the relevant para. Of the judgment which appears on page 45 which is as follows:- ' It is thus obvious that even if this Court came to the conclusion that the minor is not illegally or improperly detained yet since the minor has been brought before it, therefore, under section 491(1)
(a), Cr.P.C. The Honourable 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 7 years. It is also well-settled that ordinarily the mother is entitled to Hizanat of a minor male child below the age of 7 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 respondent or not this Court is Well within its authority to make over his custody to the mother if the circumstances so warrant"
In the present case the detenu is a minor girl and there is no dispute between the parties that the mother is entitled to the custody of a girl until she attains puberty under Hizanat unless the mother stands disqualified to such custody for the reasons laid down by the Muslim Personal Law.
' However, it may be recorded here that the learned counsel for the respondents had tried to make out a case against the mother, the petitioner, on the ground that the welfare of the detenu demanded that the said mother should not have the custody of the detenu child. But I am constrained to note that nothing of substance could be urged against the mother to disqualify her from being entitled to the custody of a minor girl as her mother.
10. Before concluding it shall be pertinent to point out that in default of female relations including the mother, the custody under the Muslim Personal Law belongs to the male relations, and that it has to be in the following order:--
(i) The father.
(ii) Nearest paternal-grandfather.
(iii) Full brother.
(iv) Consanguine brother etc. Etc.
11. In the present case the respondents are the consanguine brothers of the detenu child and it is not the respondent's case that the mother, other female relations, and the male relations who are first in preference to the consanguine brothers as stated above, stand disqualified from being entitled to the custody of the detenu.
12. For what has been stated above, it is obvious that under the facts and circumstances of the present case the custody of the detenu was with the petitioner, her real mother, and that she had been taken away on some pretext by the respondents and that the respondents were holding on to her custody without any lawful order of a competent Court or forum, and had refused to hand her back to her mother, the petitioner.
13. Resultantly this habeas corpus petition is accepted and the respondent are directed to hand over the custody of the child detenu, Mst. Safia Bibi to the petitioner, her mother in the Court
14. Before parting with the judgment I would like to add that this order is without prejudice to the orders that may be passed by the learned Guardian Judge in petition for the appointment of a Guardian and the custody of the Ward pending before him. He shall pass an independent order without being influenced by anything said in this judgment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.