Sajidah Perveen and Ubaid Ullah Khan were married on 26-8-1991, and from the wedlock was born on 5-7-1992, a son, Khurram Ubaid Khan. The allegation made by the wife is that she was maltreated, beaten up and turned out of the doors by her husband and his father, the respondents, on 7-1-1993, after snatching away the minor son. Efforts made for a patch-up having failed, the wife has approached this Court invoking its inherent jurisdiction under section 491, Cr.P.C. and extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in seeking custody of her son, maintaining that there is no other efficacious, adequate and speedy remedy available for the object.
2. The move has been opposed by the respondents, who have controverted the aforesaid assertion of the petitioner, who, according to them, had left the house of her husband of her own accord and without real justification, leaving the child behind. It is urged that there is an alternative course, which the petitioner should have pursued. Shc could have recourse to another forum and could well file. a petition under section 25, Guardians and Wards Act, and was also at liberty to seek interim custody of the minor by making an application under section 12 of the Act.
3. The petitioner has appeared in person and levelled serious allegations against her husband, right on his face. According to her, he is very greedy person, who had forced her to get from her father an enormous amount for purchasing two taxi cars, one for personal use and the other for earning income through hiring. He is also said to be a highly irresponsible and was unscrupulous person, accustomed to a revelrous living, have been visiting Murree and Bangkok in company of a friend and his sister. Although she did provide him the money by forcing her father, he, viz. her husband, spent a substantial part of it in undertaking these excursions.
4. Whatever may be the background of estrangement between the spouses, the fact remains that they are presently living separately from each other and the small child has been brought in the Court by the respondents, being in their custody, currently. The child is less than 8 month old and the damn fact that he has to be sustained by his mother, who has to feed him, cannot be denied.
According to the petitioner, the health and life of the child are in jeopardy.
5. Learned counsel for the petitioner maintains with vehemence that provisions of Guardians and Wards Act and those of section 491, Cr.P.C. are not mutually overlapping, exclusive or inter- destructive, and present petition is maintainable, as what is immediate concern of the mother, is the welfare of the suckling baby, and this Court cannot lose sight of it. Reliance is placed on Muhammad Javed Umrao v. Miss Uzma Wahid 1988 SCM R 1891, Shabir Hussain v. Mst. Shahnaz Parveen and another 1989 PCr.LJ 1689 and Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342. In the matters pertaining to the custody of minors of tender age, the High Court has got the powers to interfere under section 491, Cr.P.C. which remedy is definitely speedier and is also more efficacious and effective.
6. I am of the view that ordinarily provisions of section 491, Cr.P.C. or those of Article 199 of the Constitution are not available for determining question of guardianship of a minor or for declaring suitability of a person for having custody of a minor but in special circumstances of a case, initiation of these proceedings would be justified and this Court should not hesitate to afford to the genuinely-aggrieved party immediate relief, in exercise of the aforesaid jurisdiction. No mother, howsoever indifferent or callous she might be, can bear the sight of her suckling baby living apart from her, and I, therefore, cannot believe that the petitioner had abandoned her small son voluntarily, while leaving, or on being ousted from, the house of her husband. I think, I am justified in inferring that she was being ill-treated and was made to stage exit from the house of her in-laws, on being divested of her minor son, whose custody thus was assumed illegally or wrongfully, in a way, by the father. It is also so well-known that there cannot be any substitute for a mother who alone at that tender age can look after and rear up the child, especially when father is not an affluent person and has not claimed in Court to be having any other female member of family in his house.
7. Petitioner's husband and father-in-law, respondents before me, have indeed not been able to convincingly controvert her allegation made against them in the open Court. The petitioner, it seems, belongs to a well-to-do and well-groomed family, while the young man, who is her husband, is a taxi-driver, operating car of some zamindar on daily wages. This is what he himself has claimed in the Court.
8. It will not be disputed that if the petitioner chooses to approach the Guardian Judge, the proceedings, snail-paced as the same usually are, will fail to yield the requisite relief, and it will probably be too late, before she succeeds in securing custody of her minor son, in vital interest of well-being of the latter. Normally a child of such a small age has to be with his/her mother, so that she or he is properly nutrited and brought up. Exceptional circumstances of the case, in my view, amply and eminently justify this Court's interference in the matter; and I do not think, that I would be overstepping the confines of the jurisdiction of this Court in granting to the petitioner the immediate relief that she stands in need of, in the interests of life and welfare of the small child, and not really in her own interests, attended by selfishness of any kind.
9. The husband would be at liberty to follow the normal legal channel, provided by the provisions of Guardians and Wards Act, in claiming back the custody of his son, at the appropriate time. This order will be subject to any decision to be taken in the matter by the Guardian Judge, who must not be influenced or prejudiced in any manner by the observations made by this Court, in a tentative manner, and when approached will proceed to resolve the dispute and determine the suitability of the future custodian of the minor strictly on merits. I would-permit the petitioner to take the child with her, by accepting this petition.