This application under section 491, Cr.P.C. Is moved by Sadia Ahmad with a prayer that her minor children, Maham (daughter) 4 years, and Nabil (Son) 2 years, may be restored to her custody. The respondent No.2 Ahmed Samie is the husband, respondent No.3 Abdul Samie is the father-in-law, and the respondent No.4 Amina Samie is the mother-in-law of the applicant.
2. The circumstances under which this application was moved, are that the applicant Sadia Ahmed was married to respondent No.2 Ahmed Samie on 20-9-1989 at Karachi. Out of this wedlock, the minors Maham and Nabil were born. Unfortunately, the couple developed differences and the applicant was deserted by her husband, the respondent No.2 on 10-7-1994 and was left at the house of her parents, alongwith the children. Sometime thereafter, the father---in-law and mother-in-law of the applicant returned from abroad and the respondent No.2 asked the applicant to send the children to meet their, grandparents. The applicant obliged by sending the children to the house of the respondents. Thereafter, the children have been deceitfully and unlawfully detained by the respondents and in spite of best efforts of the applicant the custody of the children has not been restored to her. On the other hand, the respondents have contended that after the development of ill-feelings between the applicant and her husband, she left without - informing anyone alongwith her children and thereafter she sent the children for meeting purpose of their grand-parents on the request of the grandparents on 8th September, 1994. After two days, as promised, the children were sent back to the applicant through the driver. Only after 4 hours time the children were sent back to the, respondents by the applicant and since then the children are living with the respondents. Under these circumstances the children are claimed to be in proper and legal custody of the respondents. It was denied that the children are detained unlawfully or deceitfully. Legal pleas have also been taken, to the effect that provisions of section 491, Cr.P.C. Are not attracted in the circumstances of the case and that interference by this Court under section 491, Cr.P.C. Is uncalled for as the remedy under the provisions of Guardian and Wards Act is available to the applicant. After the admission of the present application, the parties appeared and the minors were also brought before the Court. The parties levelled various allegations against each other tending to show that the differences between them are serious. The applicant claims that she was neglected by her husband Ahmed Samie and that she was willing to go back and live with him for the sake of welfare of the children at the cost of her happiness, while the respondents state that the applicant is herself responsible for her unhappiness, being rude and arrogant, and that she never wanted to keep the children with herself. The fact remains that the unhappiness between the spouses has reached on an advanced stage, and therefore, the dispute over the custody of the children could not be resolved by them and the applicant has approached this Court.
3. The learned counsel for the parties have been heard at length. Contention of the counsel for the applicant is that provisions of section 491, Cr.P.C. Are attracted in this case as Muslim Law has granted the right of custody of the minors to the mother, in terms of "Hizanat", and therefore, in any case, when the minors are brought before the Court, the Court under provisions of section 491, Cr.P.C. Should award the custody to the mother having right of "Hazanat" leaving the question of "welfare" to be decided by a Guardian Court, on evidence from the parties. He has also contended that the custody of the children was obtained by deceitful methods, and that the minors are detained illegally and improperly. The contention of the learned counsel for the respondents Nos.2, 3, and 4, however, is that since the father is a natural guardian, with whom the minors are presently living, the applicant cannot invoke provisions of section 491, Cr.P.C. To secure the custody of the minors, and that the applicant should approach the Guardian Judge under Guardian and Wards Act and Family Court Act, to secure the custody of the minor, after proving that the welfare of the minors requires such change in custody of the minors from possession of a father to the mother.
Further, contention of the counsel for the respondents Nos.2, 3 and 4 is that during the pendency of these proceedings the respondent No.2, the father has filed a case under section 25 of the Guardian and Ward9 Act (G & W Application No.146/95), in the Court of the IInd Senior Civil Judge, Karachi East, which is pending, and that therefore, this Court should restrain itself from passing any order under section 491, Cr.P.C. In respect of custody of minors, and direct the parties to get a decision from the Guardian Court. In response to this argument the counsel for the applicant has contended that the Guardians and Wards Application No.146 of 1995 has been filed with mala fide intention of the respondent No.2 as he in spite of pendency of these proceedings has approached the Guardian Court quite unnecessarily. The respondent No.2 who is a father and natural guardian, need not have filed such application as he was having custody of the minors against which the applicant had filed the present proceedings which are being defended by the respondent No.2.
Since these proceedings under section 491, Cr.P.C. Were already pending before this Court, and the respondent No.2 was served with the notice of the same, it cannot be said that the jurisdiction under section 491, Cr.P.C. Cannot be exercised by this Court, merely because the respondent No.2 has filed application before the Guardian Court.
Learned AA.-G. Appearing for the State, made enlightened arguments, and contended that under the circumstances of this case, the applicant being mother, had right of Hizanat, and that since the minors are brought before the Court, the Court should award their custody to the applicant- mother, leaving the door open for the parties to lead evidence before the Guardian Court in respect of welfare of the minors, and entitlement of each parent to have the custody of the minors.
4. Admittedly, the applicant and the respondent No.2 are having strained relations and there is separation between the parties. Spouses are young and belonging to well to do families. The minors were living with the applicant when there was separation and it is the admitted case of both the parties that the minors had been given in custody of the respondents Nos3 and 4 by the applicant, when they had returned from abroad, in response to a request made by the respondent No.2. It is thereafter, that the facts are disputed. Contention of the applicant is that after she sent the children for meeting with their grand--parents they were not returned to her while the contention of the respondents is that the applicant herself abandoned right of the custody of the minors and refused to accept the minors when they were sent back to her through the driver of the respondents.
5. Section 352 of Mahomedan Law by Mulla is reproduced hereunder for the sake of convenience to study the provisions in relation to this case: -- "Right of mother to custody of infant children.---The mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father:"
In this case there is no allegation against the applicant that she is divorced or she has married again. Therefore, prima facie, it is established that applicant is entitled to the custody (Hizanat) of the two minor children, who are of tender age. No doubt, father is the natural guardian under Muslim Law but the mother is granted the right of custody of the infant children, notwithstanding the right of the father. The father continues to be the natural guardian. The custody (Hizanat) of the mother is limited up to certain age limits. The male child is permitted to be in custody (by the mother) up to the age of 7 years and the female child, until she has attained the puberty. Therefore, I am clear in my mind that the applicant has right of custody (Hizanat) to have the custody of the minors at present. A question now remains as to the interpretation of the provisions of section 491 of Cr.P.C. Section 491, Cr.P.C. Provides that on the directions of the High Court whenever a person living within the appellate criminal jurisdiction of the High Court is brought before it, has to be dealt with according to law. Thereafter, it is provided that if a person is found to be illegally or improperly detained in public or private custody he is to be set at liberty. The directions to be issued under this section by the High Court are in the shape of the writ of "habeas carpus". In this case the minors, have been brought before this Court under the directions of this Court, therefore, they have to be dealt with according to law. Since the detenues are the minors, while dealing with them in accordance with law, their custody has to be given to a rightful person. Learned counsel appearing for the father and the grand--parents of the detenues has vehemently argued that-no direction could be issued under section 491, Cr.P.C. For passing on the custody of the minors from father to the mother under the provisions of section 491, Cr.P.C. As according to him, the matter of custody and guardianship of minors could not be dealt with and decided in proceedings under section 491 of the Code of Criminal Procedure. According to him the upper most principle on which the decision of .The custody of the minors was to be decided was the question of the welfare of the child and not. The principle of Hizanat. According to the learned counsel for the respondents right of Hizanat should not be considered in this case and instead the welfare of the minors may be looked into and according to him the father could look after the minors and their welfare more than the applicant. This aspect of the case, which has been argued by the learned counsel for the respondents Nos.2, 3 and 4, was considered by me but in the light of the decisions of the Supreme Court as well as of the High Courts in various cases I have come to the conclusion that since -the provisions of section 491, Cr.P.C. And the Guardian and Wards Act are different, they neither mutually exclude nor overlap or destroy the other. This Court can invoke the powers under section 491, Cr.P.C. For passing appropriate order for dealing with the minots in accordance with law. I am supported in this view of mine by the findings given by the Supreme Court in the case of Muhammad Javed Umrao v. Miss Uzma Wahid 1988 SCM R 1891. In the above case it has been observed: -- "The Guardians and Wards Act, as the title itself suggests, deals with the Guardians, Wards and the problems and questions relating to them. Section 7 relates to the appointment of a guardian by the Court and section 12 authorises the Court to make interlocutory order for protection of minor and interim protection of person and property. The two matters, one dealt with by section 491, Cr.P.C. And the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other, or the one destroying the other.
The law as it stands, shows no such repugnancy."
6. The contention of the learned counsel for the respondents that it was the applicant, who herself had given up the custody of the minors and that therefore, she has now lost her right of Hizanat, also does not appeal to be true. There is notice dated 18-11-1994 issued by the applicant through her counsel to the respondents requesting respondents to give the custody of the children to her.
Thereafter, she has approached this Court on 18-1-1995 and she has vehemently pursued the proceedings before this Court for the custody of the minors. It shows that she has been concerned with the custody of her minor children and prima facie I do not find force in the contention of the respondents that the applicant herself had given up the custody of the minors in their favour. Even if it be so, still the right of Hizanat is not lost by such conduct on the part of the applicant as the right of Hizanat is statutory right of the mother and the factum whether the children were detained by the respondents or were wilfully allowed to live with them by the applicant, is a question of fact requiring decision after evidence. Proceedings under section 491, Cr.P.C. Are summary in nature and, therefore, this question is left to be decided by the Guardians Court after recording of the evidence. The other relevant cases on the points in issue, which have motivated me to arrive at the conclusion in this case are (1) the case of Miss Hina Jilani v. Sohail Butt PLD 1995 Lah. Page 151 and
(2) the case of Mst. Nasim Akhtar v. Shaikh Gulzar Ahmed and 4 others 1995 PCr.LJ 474.
In the first case it has been observed that: "The jurisdiction to be exercised by this Court in respect of the matter relating to custody of minor is more parental in nature than anything else. In all matters relating to custody of minors the Courts act in locus parents".
It is also held in this case that: -- "...It is a legal duty of a Court to regulate the custody of the minor in order to ensure his well being and welfare which is paramount dominent consideration."
It has also been held in this case that:--- "...It is well-settled that the jurisdiction exercised b`- this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 and section 491, Cr.P.C. Is different and distinct from the jurisdiction of the Family Court under the family laws and that notwithstanding the fact that a person may have a right to move the Guardian Court for the custody of the minor, he can in appropriate cases, also approach this Court for restoration of the custody of minor to the person to whom it rightly belongs. However, any arrangement made by this Court will be interlocutory and subject to final decision, if any, of the Guardian Court."
In this case of Lahore High Court, the case of Muhammad Javed Umrao v. Miss Uzma Vahid was also referred among many other cases. Another case, which is being taken help of in arriving at this conclusion, is Hiroku Muhammad v. Muhammad Lateef 1994 MLD 1680, where it was observed: -- "The law on the subject is now well-settled. Although proceedings under section 491, Cr.P.C. Are summary in nature and no final decision can be rendered by the Court on the question of custody of the minor which has ultimately to be decided by the Guardian Judge/Family Court but nevertheless in exceptional cases where the removal of the minor from the custody of the petitioner is either through fraud, deceipt or by force and the welfare of the minor so requires, the Court can in appropriate matters interfere in the exercise of its jurisdiction under section 491, Cr.P.C."
The other case of Mst. Nasim Akhtar v. Shaikh Gulzar is the earlier decision given by me, in which also I have held that the right of 'a mother to hold the custody of the children under Hizanat is well- known and the mother has a right to keep the custody of the minor girl upto the age of her attaining puberty. The father is at the same time not debarred from proving before the Guardian Court that the mother has lost her right of Hizanat and then the custody of the minor can be' entrusted to the father. This was left open to the parties to establish whether the welfare of the minor lies in remaining with the mother or with the father. The parties were left to get such declaration from the competent Guardian Court.
7. Till such declaratory orders are passed by the Guardian and Wards Court, the High Court has to pass orders under section 491, Cr.P.C. To deal with the person, who is brought before the Court according to law. Therefore, keeping in view the right of Hizanat of the mother and looking to all other circumstances of this case, I am of the view that at this juncture the custody of the minors be awarded to the mother viz. The applicant, leaving the doors of the Guardian Court open for an order, which may be passed by it in respect of the custody of the minors looking to the welfare of the minors and all other relevant factors permitted by law. The result is that this application is allowed arid the respondents Nos. 2, 3 and 4 are ordered to hand over the custody of the minors to the applicant. It is made clear that the Guardian Court is at liberty to adjudicate the matter for awarding permanent custody of the minors to any person found entitled under the law. The Guardian Court is further directed to see that the matter before it is decided with a period of four months and preference is given to this matter over other cases.