' This application under section 491 of Cr.P.C. Filed by the applicant Mst. Shahnaz, refers to the alleged detention of her minor daughter Javeria by the father Muhammad Azam (respondent No,1), with prayer that this Court may direct release of the minor and deliver her custody to the applicant.
2. The facts given in the application are that the marriage between the applicant and the respondent was solemnized on 21-12-1987 and out of the wedlock, a daughter named Javeria was born on 28-5-1989. The relations between the parties were cordial but because of the death of respondent's brother while fighting in Afghan Jehaad, the respondent developed relations with his late brother's widow Mst. Kausar and they entered into marriage on 14-12-1991. The required permission for second marriage was not obtained from applicant under the Muslim Family Laws Ordinance of 1961. Because of the second marriage of respondent No,1, differences between applicant and the respondent arose and on many occasions applicant was even maltreated. On 18-4-1992 applicant was physically beaten and turned out of his house by the respondent and snatched minor Javeria from applicant and is detaining her against the wishes of the applicant. It is also stated that the minor Javeria in the custody of the respondent is in a bad state of health and her life is in extreme danger., The respondent has even refused applicant to see the minor daughter. Even the treatment of the step-brother Mst. Kausar towards the minor is harsh and is that of a cruel step-mother. Applicant further stated that she filed proceedings under the Guardian and Wards Act, which were withdrawn after these proceedings were filed.
3. On 10-8-1992 a learned Judge of this Court handed over interim custody of the minor Javeria to applicant. Respondent has filed written statement, denied the allegations made against him in the application and has also stated that the second marriage with Mst. Shahnaz Kausar was contracted by him with the explicit permission of applicant and after applicant was satisfied that because of death of respondent's brother Mst. Shahnaz Kausar had become homeless and needed refuge. A photo copy of permission for contracting second marriage duly signed by the applicant i3 also produced. It is also stated that the minor is being properly maintained by the respondent and his second wife, and the minor is admitted in a good school where she is receiving proper education. It is also stated that the respondent being the father and natural guardian of the minor cannot be said to have illegally and improperly detained, nor the provisions of section 491 of Cr.P.C.
Would be attracted. It is also stated that because of the proceedings filed by the applicant under Guardian and Wards Act for the custody of the minor, this Court may decline to grant relief as prayed.
4. I have heard the learned counsel and perused the record. It is contended by the applicant's learned Advocate that minor Baby Javeria was about 3 years of age on the date when the said minor was snatched by respondent and under law the respondent, although father and natural guardian, cannot be allowed to keep a minor of that tender age with him in presence of real mother and also because respondent has taken a second wife, who being the step-mother of the minor, could, under no circumstance properly look after the minor in a way the applicant would do.
It is further contended that the proceedings under Guardian and Wards Act although initiated earlier than these proceedings, have subsequently been withdrawn, but even if such proceedings were pending, this Court could exercise jurisdiction under section 491 of Cr.P.C. To set at liberty the minor and restore her custody to the applicant. In support of all such contentions, learned Advocate has referred to the following judgments:--
(a) Mst. Nusrat Jehan v. Muhammad Siddiq Khan and another 1993 PCr.LJ 522, ' Mst. Farzana v. Syed Muhammad Afzal and another 1991 PCr.LJ 758, ' Mst. Zubeda Khatoon alias Aqleema Khatoon alias Parveen v. Saadullah A. Siddiqui and 4 others 1992 PCr.LJ 690, ' Iffat Mir v. Mobeen Qasim Mir 1991 PCr.LJ 2372, ' Mst. Aasia v. Mashhud Ahmad and another 1990 PCr.LJ 847, Musarrat Jabeen v. Dr. Khalid Nawaz and another 1990 PCr.LJ 686, ' Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342.
5. Respondent's learned Advocate has contended that the custody of the minor baby Javeria with respondent, who is the real father and natural guardian cannot be said to be either illegal or improper and in such cases where there is dispute between the parents over the custody of the minor, it should be left to be decided by a Guardian Judge, before whom evidence would be led by parties to determine as to the welfare of the minor. It is further argued that it was within the knowledge of applicant that the respondent had taken second wife, who was widow of his brother who died during Afghan Jehaad and such marriage was with the permission of applicant. It is also contended that the minor girl is being properly looked after and is being sent to a school and all care is taken for the welfare of the said minor. In these circumstances, the custody of minor, which was temporarily handed over to the applicant under the orders of this Court, may be delivered back to the respondent with direction to the applicant to seek appropriate relief through a Court having jurisdiction under Guardian and Wards Act. In support of these contentions, learned Advocate has referred to the following judgments:--
(a) Ghulam Muhammad v. Faqir Muhammad and another PLD 1975 Kar. 118, (b). Mukhtaran v: Muhammad Anwar 1979 PCr.LJ Note 151 p.96, (c) Mst. Aisha Bibi v. Nazeer and 2 others 1981 SCM R 301.
6. The age of the minor baby Javeria is not disputed, nor it is disputed that applicant gave birth to the said minor. The point to be determined would be, whether in the circumstances of the case, the provisions of section 491 of Cr.P.C. Would be attracted and a habeas corpus petition, would be maintainable. Subsection 1(b) of section 491 of Cr.P.C. Provides that a High Court, whenever it thinks fit, that a person illegally or improperly detained in public or private custody within such limits, direct said person to be set at liberty. Respondent is the father as well as the natural guardian of the minor. Looking to the age of the minor and the circumstances that respondent has taken an additional wife, would it be appropriate to set such minor at liberty or direct her custody to be given to the mother. The case-law on the subject is by now well-settled. In the case of Nusrat Jehan 1993 PCr.LJ 522 a learned Judge of this Court handed over custody of the detenue, a real daughter aged 10 years to the mother and held that the mother under the Muslim Personal Law was entitled to the custody of said minor. In the case of Mst. Farzana 1991 PCr.LJ 758 it was held that the pendency of proceedings under the Guardian and Wards Act would not take away the jurisdiction of the High Court in hearing the petitions under section 491 of Cr.P.C. And the custody of the minor being kept by the father was handed over to the mother. In the case of Mst. Zubeda Khatoon 1992 PCr.LJ 690 a learned Judge of this Court held that the High Court has got jurisdiction under section 491 of Cr.P.C., which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of parties involved, to have the matter finally adjudicated upon by Guardian Judge. The custody of the minor son aged about one year was handed over to the mother. In the case of Iffat Mir 1991 PCr.LJ 2372 a learned Judge of the Lahore High Court held that the mother, according to Muslim Law, was entitled to custody of the male minor child until minor had completed age of 12 years and Law also presumed that welfare of minor lay in his living with the mother. In the case of Mst. Aasia 1990 PCr.LJ 847 a learned Judge of this Court in proceedings under section 491 of Cr.P.C. Directed handing over custody of the minor to the mother. Similar view was taken in the case of Mussarat Jabeen 1990 PCr.LJ 686 and Mst.
Tauqeer Fatima 1990 PCr.LJ 342.
7. I would now revert to the case-law referred by the learned counsel for the respondent. In the case of Ghulam Muhammad PLD 1975 Kar. 118, the facts were that the sister of the petitioner was said to be wrongfully detained by her husband and a petition under section 491 of Cr.P.C. Was filed before this Court. It was held by a learned D.B. Of this Court that the case essentially related to dispute regarding matrimonial affairs and must be led before Family Court rather than High Court under section 491 of Cr.P.C. It was further held that allegations such as wrongful confinement or the like, involving offences normally punishable, would be dealt with by a criminal Court, which was normal venue for trial of such allegations. In the case of Mukhtaran 1979 PCr.LJ 96 Note 151 a learned Judge of Lahore High Court held that a habeas corpus application under section 491 of Cr.P.C. For custody of the minor aged 2 and 3 years where mother and father are in dispute over their matrimonial affairs was not maintainable and the proper course was to move guardian Judge. In the case of Mst. Aisha Bibi 1981 SCM R 301 the Honourable Supreme Court held that the dispute between the parties was essentially regarding custody of a girl and no question of forcible detention arose, the petitioner being maternal-grandmother of the girl and the respondent being girl's paternal-uncle, the matter was essentially one for Guardian Judge to decide and no justification made out for issuing a direction in the nature of writ of habeas corpus.
8. The facts of this case manifestly show that the respondent has taken additional wife and the apprehension of applicant that the minor cannot be properly looked after by the step-mother are not without any force. The father although natural guardian of the minor, cannot properly look after the said minor in the presence of the mother. There seems to be no other matrimonial dispute between the parties except about the custody of the minor. The circumstances of the case warrant that the custody of baby Javeria be handed over to the applicant, who is the real mother. This application is, therefore, allowed and the order of grant of interim custody to the applicant, dated 10-8-1992 is hereby confirmed. The Criminal Miscellaneous Application stands disposed off in the above terms.