It is a habeas corpus petition under section 491, Cr.P.C. Brought by the real mother to recover her four minor children, two sons and two daughters, aged between 2 and 8. She allegedly lived alongwith the respondent who was her mother-in-law in an official quarter at Islamabad whilst her husband was posted in the Embassy of Pakistan m Nepal. The children too obviously lived with both the ladies in the same quarter, but according to the petitioner's assertion the respondent-lady turned her out on 15-1-1990, leased out the quarter, snatched away the children and took them to her native village, Nakka Afghan, Tehsil Pindi Gheb.
2. After institution of the petition, the petitioner's husband came back from Nepal and evidently took over the custody of the children from his mother, and they both opposed the application pointing out verbally that they had done everything possible to look after the petitioner in providing her an official quarter at Islamabad and also necessary expenses for the upkeep of the children.
Their plea was that she had herself left the house, was roaming here and there without any place to live in and that it was not in the welfare of the children to hand over their custody to her.
Additionally, it was contended seriously that the petitioner had already brought a similar application before the Guardian Judge and that she could not seek the same relief summarily from the High Court where the question of fact as to the welfare of the minors could not be determined without evidence.
3. Seeing that the parties were spouses, I had been purposely adjourning the hearing quite a few times with a hope that they might sink their differences at least in the interest of children, but unfortunately each one of them remained adamant. Consequently the controversy evoked an elaborate discussion. Mr. Nazar Muhammad Tahir, Advocate for the petitioner relying upon the phraseology of section 491, Cr.P.C. Urged that the Court was to see that the Hizanat of the minor children was determined in accordance with law, and according to him the law contained in section 352 of Muhammadan Law by F.D. Mullah (edition by Dr. M.A. Mannan) contemplated that minor sons upto the age of seven and minor daughters upto the age of puberty were to be kept in the custody of mother. He stressed that though the father was a natural guardian of the children, yet in presence of the mother, the right of Hizanat vested in the latter. He placed reliance upon Mussarat Jabeen v. Dr. Khalid Nawab and another 1990 P Cr. L J 686 maintaining that the mother could be granted custody of the children even against the father. Likewise he argued that pendency of a petition before the Guardian Judge for appointment of a guardian as well would not preclude the High Court from delivering the minors to the custody of the mother and for this view he cited Rizvana Bokhari v. Abdul Majeed and another 1984 P C r. L J 2580, Uzma Vahid v.
Muhammad Javed Unirao 1988 P Cr. L J 1883 and Mst. Bachal Mai v. Allah Ditta and another 1990 P Cr. L J 93. He emphasized that the respondent-father was having children from his previous were too and that it would not-be conducive to compel the petitioner's children to live with their step- mother.
4. On the other hand, Sardar Muhammad Ishaq Sadozai, counsel for the respondent-father stressed that since the petitioner brought an application for appointment as a guardian for the minors, she would be deemed to have abandoned the present summary remedy and that in any event she would have no case against the father of the children, who being a natural guardian was expected to look after them in a comparatively better way. He drew attention to the litigation pending between the parties either for appointment of a guardian for the minors, or restitution of conjugal rights or maintenance, which on one side had strained their relations, and on the other had exposed the inadequate financial position of the petitioner-lady High Court. He sought to establish that she had herself left the husband's house having no place to stay in, nor any means to live upon and that allowing her to take away no less than four children would be putting them in the hands of a sheer destitute.
5. No doubt the contest is between the mother and the father, and though the latter was a natural guardian of the minor children, yet the proceedings for habeas corpus were not intended to be elaborate so as to decide them with relation to their welfare. Such question admittedly was under consideration separately before the learned Guardian Judge. He might pass any order, which may be justified after appraising evidence to be brought before him for and against the point. The language of section 491(1-a), Cr.P.C. Requires to see that any person illegally detained or confined may be brought before the Court to be dealt with according to law. It goes without saying that the law governing the right of Hizanat, contained in section 352 of the Muhammad Law, referred to above, conferred a better right to the same on the mother rather than the respondent lady in her capacity as their paternal-grandmother, or even their father. It is conferment of a right on the mother by personal law and obviously the philosophy behind was that the minors especially the females needed motherly affection more than anything else. This was the reason why in the cases referred to by Mr. Nazar Muhammad Tahir, Advocate for the petitioner-lady High Court directed delivery of custody of minor children to the mother notwithstanding that they were kept by the father or that there was litigation for appointment of their guardian.
6. Whether the circumstances of the mother were not conducive to the welfare of the minors, was a question of fact which could not be looked into in the summary proceedings under section 491, Cr.P.C. It was a question requiring evidence and shall, of course, be settled by the learned Guardian Judge in due course. The further fact remains that the petitioner still remains to be the were of the respondent-father. She has not disentitled herself from seeking custody of the children either by having obtained dissolution of marriage or entering into afresh wedlock. Conversely, the respondent-father would be in a way obliged to keep the minors with his first were. It may not be easy to accept the idea that the' stepmother would furnish them the same degree of affection as may be extended to them by their true mother.
7. Accordingly I accept the petition and direct the respondent Mst. Gul Jan as also her son Muhammad Nawaz, namely father of the children to deliver their custody to the petitioner within a fortnight. It may be mentioned here that the father of the children was not impleaded as a formal party to the proceedings, but he had been taking part personally as also through a counsel.
Besides, the custody of the minors was handed over to him by the respondent Mst. Gul Jan after the institution of the present petition and hence for this reason too he will be bound by the order.