' Sahrash, aged 5-1/2 years, Seemab, aged 4 years, and Faisal, aged 2 years, are children of Mst.
Nasim Akhtar and Ashfaque Ahmad. Their parents separated seven months before, resulting in divorce in April last. Nasim Akhtar was deprived of the children. Presently, the minor were living with Qazi Muhammad Zubair in village Bimla Bains, Tehsil Smahni. The petitioner came to know that the children were not properly maintained, as such she invoked the jurisdiction of this Court in exercise of powers under section 491 of the Criminal Procedure Code and prayed for recovery of the minors and restoration of their custody to her. The minors were recovered by the police from the house of Qazi Muhammad Zubair and produced before this Court yesterday. Qazi Muhammad Zubair, non- applicant has not appeared. Ashfaque Ahmad, father of the minors, has appeared with Mr. M.Y.
Arvi, Advocate. He submitted an affidavit wherein it was deposed that he lived with Zubair Akhtar, his uncle. On separation of the spouses, the minors were left with him. He maintained them in the house of his uncle. The petition of Nasim Akhtar was opposed. It was alleged that she once tried to kill him by administering poison.
2. The learned Counsel for the petitioner argued that this Court was competent to hand over the minors to the mother in exercise of powers under section 491, Cr.P.C. It was emphasised that it was in the interest and welfare of the minors that they should live with their mother, particularly when the father was not living with the minors and he had delivered them to the custody of a third person. Reference was made to PLD 1970 A J K13,1984 P Cr. L J 1047 and AIR 1960 SC (India)
93. Mr. M.Y. Arvi, the learned counsel for the opposite side controverted the aforesaid points and argued that the father was a lawful guardian of the minors, particularly when the petitioner was not of good character. It was suggested that the minors may be restored to the father instead of the mother.
3. Section 491(a), Cr.P.C, postulates that High Court may direct, in appropriate cases, that a person be brought before it to be dealt with in accordance with law. These provisions are enforceable in different cases illustrated therein. The Court is empowered to direct production of a person, in appropriate cases, including illegal detention, for his disposition according to law. The remedy provided in the section is ordinarily granted in case of wrongful detention and deprivation of personal liberty. Likewise, when the Court is of the opinion that the minors were kept in unlawful custody, it is empowered to restore the custody of the minors to the lawful guardian. In case of dispute amongst the parents, it is permissible, in exercise of powers under this section, to deliver the minors to the custody of natural guardian or the guardian appointed by the Court, as the case may be. While disposing of the matter of custody of the minors, the Court is enjoined to keep in view the provisions of personal law applicable to the minors.
4. In present case, mother has invoked the authority of this Court by seeking the redress of her grievance in the manner of recovery of the minors and their restoration to her. The claim of the mother is that she was deprived of the custody of the minors illegally and the minors were kept in the house of a stranger. They were not properly looked after. The third person, from whose house the minors were recovered, has not come forward to contest the claim of the mother. Ashfaque Ahmad, father of the minors, who took the minors along, has come forward to contest the claim of the mother, ln his affidavit, he has cast aspersions on the character of the mother but admitted that the minors were kept in the house of Qazi Zubair, who happened to be his unde. Ashfaque Ahmad has no house of his own. It was also deposed that he was engaged in earning his livelihood, as such the minors were kept in the house of his unde. The facts narrated in defence partly corroborate the allegation of the mother, so as to believe that the minors were living with a third person and the father had no house of his own to maintain them under his dired supervision.
5. The Court is under an obligation to take care of welfare of the minors, particularly when the mother was divorced and the father was living away on account of his occupation in earning livelihood. The age of Sahrash is admittedly 5-1/2 years, Seemab is 4 years old and Faisal is aged 2 years. The age of the son is less than 7 years. Thus, the mother has a legitimate rlaim to the custody of the minors till such time the Guardian Court gives its final verdict. An indentical proposition received attention of this Court in Mst. Safia Bibi's case, PLD 1970 Azad J&K 13. Mr. Justice Khawaja Muhammad Sharif, C J. (as he then was), resolved the proposition as: ' The writ of 'habeas corpus' is frequently resorted to in order to obtain the custody of the children and often times to determine the rights of the parties to their custody. The children are all minors.
Therefore, the question of their consent does not arise. Where a person is legally entitled to the custody of a child, the detention of the child by any other person is illegal. If the person who is alleged to be illegally detained is an adult, the case presents little difficulty or that there has been no wrongful detention. But in the case of a 'minor' he cannot be said to be capable of giving consent and the detention against the wishes of a lawful guardian is 'prima fade' illegal."
' The point of restoration of custody of a minor in dispute between theparents, was resolved in Mst.
Gullan's case, 1984 PCr.LJ 1047 by Mr. Justice Muhammad Iqbal, C J. As: "It is manifest that the custody with the respondent (father), as obtained of his daughter, was in a manner which was illegal. Whether or not a person is entitled to the custody is a matter which can be determined by the Family Court, but in the circumstances, when the custody is illegal, it is competent for us to exercise jurisdiction under section 491, Cr.P.C. Since Mst. Bilquis the alleged detenue, had been taken away in improper manner without having recourse to the law, the custody of the respondent shall be illegal action. She should be handed over to the mother, the petitioner." in the aforesaid case, the age of the minor (daughter) was 7 or 8 years. The mother was deprived of the custody of the daughter in improper manner. She invoked the jurisdiction of the Court under section 491, Cr.P.C. The learned Chief Justice restored the custody of the minor to the mother in the manner described above.
6. The learned counsel for the father, argued that the matter of restoration of custody of the minors was within the exclusive jurisdiction of Guardian Court and this Court may not take upon itself interference at this stage. The objection is not sustainable as the powers conferred upon this Court under section 491, Cr.P.C, are quite vast. These powers are exercisable even in case of custody of minors. Clause (a) of the section postulates that High Court may direct, in a proper case, that a person within the limits of its jurisdiction, be brought before it, to be dealt with according to law.
Reference to the term "a person" is of very wide import and it applies to all persons, irrespective of the fact whether they were in illegal detention or not. The Court is enjoined upon to ensure that such person is to be dealt with according to law. In present case, the allegation ascribed in the petition is that the minors were kept in illegal custody as the legal guardian (mother) was deprived of the custody of the minors by improper means. The allegation made by the mother finds ample support, as such the minors are to be dealt with in accordance with law. Since mother is the legitimate guardian of the minors, she is, prima facie, eligible to the custody of the minors, unless, of course, the Guardian Court holds otherwise. An identical objection was repelled in Gohar Begum's case, AIR 1960 SC (lnd.)
93. It was a case of custody of an illegitimate daughter of six years. The mother moved the court for restoration of custody of the daughter. An objection was raised by the respondent that custody of the minor could not be restored in exercise of powers under section 491, Cr.P.C, as the same was within the exclusive jurisdiction of the Guardians Court.
The learned Judges repelled the objection and observed:- "We further see no reason why the appellant should have been asked to proceed under the Guardians and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a dear right to an order for the custody of the child under section 491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under section 491. That is well established as will appear from the cases hereafter cited."
7. No other point was canvassed for or against the proposition.
' In the light of the aforesaid observations, the application is granted. The minors are handed over to the custody of the mother. They shall remain in the custody of their mother, subject to an order in due course of law.