1. ' Applicant Mst. Tayyaba Khan is wife of respondent No,2, Asif Khan. Detenu minor Umer is their son.
2. This application under section 491, Cr.P.C. Has been moved by Mst. Tayyaba against her husband Asif Khan and respondent No,1 Mst. Syeda Begum, her mother-in-law, alleging that they have detained her son minor Umer aged about one and a half years under unlawful custody and that his custody be restored to her.
3. ' I have heard learned counsel for the Applicant, Mr. Zia Ahmed Awan and learned counsel for the respondents, Mr. Muhammad All Mazhar.
4. ' According to the petition, the petitioner gave birth to another child Umer who was caesarean child and after her discharge from hospital when she came home she again felt pain and as such, was admitted in Tasleem Clinic F.B. Area, Karachi. She, therefore, handed over the custody of the minor Umer to respondent No,1, her mother-in-law for the time being. After recovery of the health the applicant went to her parents' house and when she went to the house of respondent No,1, her mother-in-law, and demanded the custody of the child, she refused to give back minor Umer to the petitioner and was beaten and ousted from the house. It is also stated that despite several efforts to get the custody of her son, she failed to .Get her minor son back. Hence this application.
5. ' Learned counsel for the applicant submitted that applicant is legally entitled for the custody of minor Umer as he is below 7 years of age being about 1-1/2 years old. He has also contended that under section 491, Cr.P.C. High Court has the power to restore the custody of the minor in the circumstances indicated above. In support of his contention he has relied upon 1990 PCr.LJ 847 (Karachi) and 1987 PCr.LJ 1318 (Lahore).
6. ' On the other hand, learned counsel for the respondents has submitted that minor Umer is not under the illegal custody as he is living with his father and grandmother. It is also contended by him that the custody of the minor was delivered to them by the applicant herself and that they have not detained minor Umer unlawfully. In support of his contention he has referred to PLD 1987 Karachi 239, 1981 SCM R 301 and 1985 PCr.LJ 1469.
7. ' No doubt father of a minor is also a natural guardian but the point which is to be seen in these proceedings under section 491, Cr.P.C. Is whether the minor is under illegal custody of the respondents as alleged by the applicant. No doubt, petitioner herself has admitted that while she was admitted in the hospital she had handed over the custody of minor Umer to respondent No,1 but merely for this reason she cannot be deprived of the custody of her minor son who is below 7 years of age as under the Shariat law only mother is legally entitled to keep the minor in her custody till the age of seven years. Furthermore, the fact of handing over the custody of minor Umer by the applicant to respondent No,1 during the period when she was admitted in the hospital was a temporary arrangement for properly looking after the minor.
8. In these proceedings this Court is not required to determine as to with whom the welfare of the minor lies as it is the function of the Guardian Court to arrive at that conclusion after recording the evidence if the matter is agitated before it. For the present, I am satisfied that since our Shariat has entitled only mother to have the custody of the minor son of below 7 years of age, the custody of the minor Umer with the respondents after having been demanded by the applicant, cannot be considered as legal.
9. I, therefore, hold that minor Umer is not under the legal custody of the respondents and I accordingly direct the respondent No,2, Asif Khan, who is present in the Court with the minor Umer, to hand over the custody of the minor Umer to the Applicant Mst. Tayyaba Khan immediately.
10. Complying with the order of the Court passed today, respondent No,2 Asif Khan has handed over the custody of minor Umer to the applicant in Court. However, C the parties can agitate this point before the Guardian and Wards Court.
11. ' At the request of the respondent No,2, Asif Khan, applicant is directed to allow him to meet minor Umer once a week in the house of the applicant.