' Mst. Shaireen Abdullah petitioner has invoked the jurisdiction of this Court under section 491, Cr.P.C. For the recovery of her minor children namely Muhammad Iqbal minor aged 3-1/2 years and Ansa, minor, aged 2-1/2 years from the illegal and improper custody of the respondent and handing them over to her, she having the right of Hizanat.
2. The brief facts giving rise to this petition are that petitioner was married to the respondent on 5- 8-1988 and out of the said wedlock two abovenamed children were born. According to the petitioner in December, 1992 the respondent took away the children from the petitioner on the pretext that he was taking them to the paternal-aunt who is residing in Saba. Zar Scheme Multan Road, Lahore but did not return the children. Subsequently he divorced the petitioner which became effective on 3-4-1993. The petitioner tried her utmost to get back the children but the respondent has refused to do so. Vide this Court's order dated 13-4-1993 the respondent was summoned to appear alongwith the said two minors before this Court. Although he did not bring the children for two dates of hearing but he has produced them today in this Court.
3. Mr. Muzaffar Hussain, the learned counsel appearing on behalf of the respondent placed on record the photo copies of the different agreements allegedly entered into between the petitioner and the respondent by which the respondent divorced the petitioner and also a photo copy of agreement in pursuance of which the petitioner allegedly had surrendered her right of Hizanat over the minors and contended that ordinarily dispute as to guardianship should be decided by a Court under the Guardians and Wards Act, 1890 and so long as there are no exceptional circumstances, High Court cannot interfere under section 491, Cr.P.C. To order restoration of custody of the minors to the mother when they are with the father who is a natural guardian. The learned counsel also placed reliance on a judgment reported as Muhammad Javed Umrao v. Miss Uzma Wahid (1988 SCM R 1891) and contended that section 491, Cr.P.C. Is ordinarily not available for declaring a guardian or for determining for all times, question of custody of minor.
4. Conversely the learned counsel appearing on behalf of the petitioner contended that High Court in matters pertaining to the custody of the minors of tender age has got jurisdiction under section 491, Cr.P.C. Which remedy is definitely more efficacious and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by the Guardian Court. He placed reliance upon a judgment reported as Mussarat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686 and also the judgment of the Hon'ble Supreme Court as cited by the learned counsel for the respondent.
5. I have given my earnest thoughts to the arguments addressed by both sides and have also gone through the material available on record. I find that the relations between the parties have gone strained and there is a separation between them, and rather the respondent has divorced the petitioner. There are two unfortunate minor children aged about 3-1/2 years and 2-1/2 years but they are with the respondent who is the father. Although it is claimed by the respondent that the minor children are with him under some agreement but the important question which falls for determination however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained whether the order can be passed regarding the custody of that person. The answer is that if a person is minor the custody must be given to the guardian who is entitled for the same in accordance with law.
6. The next important issue in this case is to consider the Hizanat. As laid down in a judgment reported as Uzma Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1983 that according to the Fatawai Alamgiri the mother is of all persons the best person entitled to the custody of her infant children during the connubial relationship as well as after its dissolution, and similar is the position as laid down regarding the custody of the infants by the mother in Mohemmadan Law, pages 222- 223 Edition 1965. It is thus clear that this right belongs to the mother and nothing can take it from her except her own B misconduct. Similarly, the tenderness of their age or the weakness of their sex, renders a mother's care necessary. Mohammadan Law supports the mother's natural right to the custody of the children and similarly according to the Hanafi doctrine the mother is entitled to the custody of her daughter until she arrives at puberty. /
7. After having gone through the case law on the subject and after anxious consideration of the arguments I am of the view that it will not be in the welfare of the minors to remain with the father.
The Hizanat of the minor children lies with the mother so she is entitled to the custody of the minor children under the same right. Accordingly I direct that the custody of both the minor children namely Muhammad Iqbal, minor aged 3-1/2 years and Ansa, minor aged 2-1/2 years be handed over to the petitioner. The parties however, for their dispute as to the guardianship of the minors can move the learned Court under the Guardians and Wards Act, 1890 for final adjudication.