Begum Gulzar Khurshid Ahmad filed this petition under section 491, Cr. P. C., alleging that her daughter Mst. Shama was married to Commander Sajjad Akbar respondent, at Lahore, on 3-12- 1966, and son named Shahzad Akbar was born on 12-4-1968, while the second child Mst. Farrah Akbar alias Shazia Akbar, the detenu, was born at Karachi, on 18-12-72, but unfortunately, mother died the next day after the birth of Mst. Farrah Akbar; that dead body of Mst. Shama Akbar was brought back from Karachi and buried at Lahore, on 20-12-1972; that Shahzad Akbar and Mst.
Farrah Akbar accompanied her to Lahore and ever since, Mst. Farrah Akbar remained with her and she brought her up; that Mst. Shama Akbar left behind property No, 20-B, National Highway, Pakistan Defence Officers Co-operative Housing Society, Karachi, and she (petitioner) was prepared to relinquish her share in favour of the two minor children subject to the condition that the respondent also did the same; that she and the respondent signed a deed of Agreement and renunciation on 1st January 1973, in favour of the two minor children in respect of the above property, but later the respondent backed out of it and the said property was being managed by the respondent, who did not furnish any account of the income of the property; that the respondent removed the jewellery of Mst. Shama Akbar valuing to the tune of Rs, 2,00,000 from the locker and did not deposit the same in the names of the two minor children; that the respondent had planned to re-marry and the jewellery of Mst. Shama Akbar would the misused; that Shahzad Akbar was studying at Karachi, at the time of the death of her mother and in the best interest of the child's education, he was allowed to continue his study at Karachi; that the respondent occasionally paid visits to his daughter Mst. Farrah Akbar at Lahore and sometimes would take her away for an hour or so with her permission; that on 13-10-1974, the respondent came to her house, at 10-30 a.m. And took away Mst. Farrah Akbar with her permission for about two hours, but the respondent did not return the child and she learnt later that the respondent had taken away Mst.
Farrah Akbar to Rawalpindi with intent to keep her there; that she being the maternal grand- mother, was entitled under the law to the custody of the child and in fact had her custody since her birth on 18-12-1972, and thus the respondent was detaining the child illegally and contrary to law. A prayer was made in the petition that the respondent be directed to produce Mst. Farrah Akbar alias Shazia Akbar before this Court to be dealt with in accordance with law. It was further prayed that the custody of the child be handed over to her.
2. The respondent was directed to produce Mst. Farrah Akbar, on 22nd October 1974. In view of the apprehension of the petitioner that the respondent was going to remove the child out of the country, the respondent was restrained from removing the child out of the jurisdiction of this Court till further orders. The respondent sent an application dated 19th October 1974, intimating his inability to appear in this Court on account of his scheduled visit to France. The petition was adjourned to 19th November 1974. Cr. Misc. No, 1044-M of 1974, came up before this Court on 7-11- 1974 wherein a request for accelerating the date was made on the ground that the respondent would go abroad again in about ten days' time. An affidavit was filed along with the said petition. In view of this petition which was supported by an affidavit, the date was accelerated to 11th November 1974. The parties appeared on the said date, at 12-30 p.m. Since no work was to be attended to after 12-3, p.m. On account of the death of Khan Bahadur Mushtaq Ahmad, a Senior Advocate, the petition was adjourned to the next day. Written statement was filed on behalf of the respondent on 12-11-1974.
3. The facts of marriage and birth of children were admitted by the respondent. The respondent also admitted that he kept both the children with the petitioner temporarily till permanent arrangements were made. He further admitted that he sent the son to Karachi while the infant daughter remained with the petitioner for long period. The respondent alleged that during his visit to the petitioner, he found that the petitioner was interested in a house which was gifted by him to his wife and the desire of the petitioner was to secure the rent of the said house and he inferred from the attitude of the petitioner that she wanted to have the custody of the infant child in order to exercise hold over the property; that her attitude was clearly in conflict with the welfare of the minor; that he took his minor daughter to his residence and gave her under the care of his mother and sister; that he wanted to bring up his children in the religious atmosphere according to his family traditions and that it was not possible if the child was allowed to remain with the petitioner; that the petitioner being an aged and sick lady, was unable to give personal attrition to the minor girl and had also no independent house of her own. At the end, the respondent made a prayer that the petition be dismissed with costs.
4. I heard the learned counsel for the parties at length. The learned counsel for the petitioner contended that the petitioner wanted the physical possession of the child to which she was entitled in preference to the father. He drew my attention to section 352 of the Principles of Muhammadan Law by Sir D. F. Mulla, where it is provided that "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". He then urged that the right of female relations in default of mother is provided in section 353. It has been laid down there that "failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relations in the order given below" mother's mother comes at the top. Father's mother comes next to Ler. Great stress was laid on the point that ever-since the birth Mst. Farrah Akbar alias Shazia Akbar, the minor girl remained with the petitioner and the respondent deceitfully removed the child out of her custody on 13-10-1974, at 10-30 a.m. It was further argued by the learned counsel for the petitioner that all the writers on principles of Muhammadan Law are unanimous that after mother, mother's mother comes first for the custody of the minor girl and there was no difference of opinion in that regard. It was urged by the learned counsel for the petitioner that the detention of the minor child by the father was illegal and improper and hence the case was covered under the provisions of section 491 (1) (a) or in the alternative under section 491(1)(b) of the Cr. P. C. He cited Mst. Safia Bibi v. Ghulam Hussain Shah in support of his contention. He also urged that an application under section 491, Cr. P. C. For the production of the minor children is competent before this Court. In support of his contention, he cited Mst. Khurshid Begum v. Muhammad Hussain .
5. The learned counsel for the respondent contended that the right of mother to get the custody of the minor child is not an inchoate right and she does not step in ipso facto. Process of law is necessary. According to him, it was necessary for the petitioner to move a competent Court for the custody of the child. He further urged that father was a legal guardian of a minor child and he had the constructive custody of the child alts ought the child may not be in his physical possession; that where a father takes away minor children out of the custody of the mother, he does not commit any offence of abduction. The learned counsel cited Ahmad Nawaz and 3 others v. The State . He further contended that there existed difference of opinion over the issue of Hizanat and on account of difference of opinion, it was open to the Courts to frame their own opinion. The learned counsel read out extract from page 904 of the Majmooa Qawaneen-iIslam, Volume III of Tanzeel-ur-Rehman, Edition January 1969. He also cited Mst. Zohra Begum v. Sh. Latif Ahmad Munawar in support of his arguments. It was lastly urged that in view of the provisions of section 5 of the West Pakistan Family Courts Act, 1964, all matters relating to the custody of the children had fallen to the exclusive jurisdiction of the Family Courts and the Family Courts alone could entertain, hear and adjudicate upon matters relating to the custody of the children. In support of his arguments, the learned counsel cited Adnan Afzal v. Captain Sher Afzal Mst. Najma Siddique Rasool v. Mst. Munira Hamid Rasool and another . About the facts, it was contended that the respondent had transferred the above-mentioned house to the two children on 10-1-1974; that he cleared the debt of his wife amounting to over ninety thousands; that he had deposited Rs, 26,000 by purchasing deposit certificates in the names of the two children; that the respondent was more interested in the welfare of the children and thus entitled to their custody.
6. The learned counsel for the petitioner took lot of pain to meet the arguments of the learned counsel for the respondent that in view of the provisions of section 5 of the West Pakistan Family Courts Act of 1965, the petition under section 491, Cr. P. C. In respect of the custody of the minor children was incompetent in this Court. He was of the view that the jurisdiction of the High Court in respect of matters mentioned in section 491, Cr. P. C. Could not be taken away by a Provincial Legislature. He urged that the authority of the Supreme Court was not applicable to the case because the jurisdiction of the Magistrates had been taken away in petitions for maintenance under section 488, Cr. P. C. And fell within the jurisdiction of Family Courts and under the provisions of section 20 of the Family Courts Act, all the Judges of the Family Courts were invested with powers of Magistrate lst Class to make orders for maintenance, under section 488, Cr. P. C. He urged that in case it had been provided in the Family Courts Act, as was done in the case of maintenance, that all petitions under section 491, Cr. P. C. Relating to the custody of children which were competent before the High Court, under section 491, Cr. P. C. Were to be tried by the Judges of the Family Courts, the case would have been quite different and the authority of the Supreme Court would have been applicable. In the alternative, he urged that in case his arguments did not prevail, his petition under section 491, Cr. P. C. Be treated as a petition under section 199, of the Constitution of Islamic Republic of Pakistan.
7. District Magistrate, Sub-Divisional Magistrate or a Magistrate Ist Class could pass an order against a person for the monthly allowance for the maintenance of his wife or child at a monthly1 2 3 4 5 6 rate not exceeding Rs, 400 in the whole, if such person having sufficient means neglected or refused to maintain his wife or his legitimate or illegitimate child unable to maintain himself. Such allowance could be passed from the date of the application or from the date of making the order.
Magistrates were not competent to pass order in respect of the past maintenance. It has been provided in section 5 of the West Pakistan Family Courts Act, 1964, that subject to the provisions of Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear, and adjudicate upon matters specified in the Schedule. Maintenance is given against item No, 3 of the Schedule. It is laid down in section 20 of the said Act that Government may invest any Judge of a Family Court with powers of Magistrate Ist Class to make orders for maintenance under section 488 of the Code of Criminal Procedure, 1898.
In exercise of powers conferred by section 20 of the said Act, the Governor of West Pakistan was pleased to invest all Judges of the Family Courts with powers 'of Magistrate Ist Class to make orders for maintenance under rsection 488 of the Code of Criminal Procedure, 1898. Thus, it is clear that the Legislature never intended to omit section 488, Cr. P. C. From the statute. A petition under section 488, Cr. P. C. Is still competent and that petition is to be disposed of by a Magistrate Ist Class. The Judges of the Family Courts have been invested with powers of Magistrate Ist Class to dispose of petitions filed under section 488, Cr. P. C. Leaving aside section 488, Cr. P. C., an application for maintenance is also competent before a Judge, Family Court meaning thereby that a person has two remedies open to him to make application for the maintenance. Either he can file an application for maintenance before Judge Family Court or he can make an application under section 488, Cr. P. C. Before Judge, Family Court, who has been invested with powers of Magistrate Ist Class. The remedy under section 488, Cr. P. C. Is still available to a person as it was available to him previously although such an application was being disposed of by Magistrate Ist Class. Now this application is to be disposed of by Judge, Family Courts, who has been invested with powers of Magistrate Ist Class. No corresponding change has been made so far as provisions of section 491, Cr. P. C. Are concerned. If the intention of the Legislatur had been to take away the powers of the High Court in respect of the matters relating to the custody of the minor children, it would have specifitally mentioned in section 5 of the Act that all the Judges of the Family Courts would be competent to hear petitions under section 491, Cr. P. C. In respect of the custody of the children which matters lay within the jurisdiction of the High Court, Since the intention of the Legislature was not to oust the jurisdiction of the High Court in matters of the custody of the children, Judges of the Family Courts were not invested with powers to entertain, hear and adjudicate upon the matters relating to the custody of the children which matters were within the jurisdiction of the High Court.
There is a clear observation in the judgment of the Supreme Court that the combined effect of sections 5 and 20 of the Act was clearly to give exclusiv jurisdiction to the Family Courts without in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. In this authority, the combined effect of sections 5 and 20 was considered. The said authority was applicable so far as section 488 of the Criminal Procedure Code was concerned where the Judges of the Family Courts were invested with powers of Magistrate Ist Class and given jurisdiction to entertain, hear and adjudicate upon applications filed under section 488, Cr. P. C. The said authority is not applicable to the petition filed under section 491, Cr. P. C. In so far as the custody of the minor children is concerned. With great respect, I differ with the views of my learned brorher expressed in case Mst. Najma Siddique Rasool v. Muntra Hamid Rasool and another . Even if it be assumed for the sake of argument that the jurisdiction of this Court has been taken away to hear petition under section 491, Cr. P. C. With regards to the custody of the mina children by the enforcement of section 5 of the West Pakistan Family Court Act, 1964, this Court is still competent to dispose of the petition under the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan. It is laid down in Article 199(1)(b) of the Constitution that on the application of any person,7 High Court may, if it is satisfied that no other adequate remedy is provided by the law, make an order directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. The objection of the learned counsel for the respondent to the application of Article 199 of the Constitution was that there was other adequate remedy available to the petitioner, therefore, provisions of Article 199 were not attracted. It is to be kept in mind that mother of Mst. Farrah Akbar died one day after her birth which took place about two years ago and ever-since she had been residing with her maternal grand-mother. She was taken away on 13-10- 1974, at 10-30 a. In. As alleged by the petitioner and it was not specifically denied by the respondent. The petitioner filed the petition on the 15th of October, 1974, 1. e. Two days after the respondent took away the child. She had the right of hizanat. In case the respondent wanted the custody of the child, he should have moved the Court of competent jurisdiction for the appointment of the guardianship of the person of the minor or for the custody of minor. Since the petitioner was deprived of the legal custody by an unlawful manner, she has a right to the restoration of the custody. Taking the age and the welfare of the minor girl and the fact that the child was removed B from the custody of the petitioner in an unlawful manner, I feel no hesitation in holding that under the circumstances of the case, it is not an adequate remedy for the petitioner to move the Family Court for the custody of the child.
8. Most of the facts are common and admitted. The petitioner mentioned that Mst. Farrah Akbar remained under her custody till 13-10-1974 and the respondent took her away on pretext of taking her to certain relatives and thereafter did not return. The respondent admitted that he had sent his son to Karachi, but Mst. Farrah Akbar alias Shazia Akbar remained with the petitioner for long. In Para. No, 9 of the petition, a specific date had been given, but the respondent did not deny this fact.
The petitioner, under the circumstances of the case, could not permit the respondent to take away the child. She had brought up the child for two years and thus she could not part with the child so easily. There is no difficulty in coming to a finding as to who is entitled to the custody of a minor girl.
All the famous authors like Mulla, Saksena, Syed Amir Ali etc. Are unanimous that after mother, mother's mother comes first and entitled to the custody of a minor girl. Father is only a natural guardian. If a father intends to get the custody of the minor girl, it is his duty to approach a Court of competent jurisdiction for the purpose. If a father by some pretext or deceitful manner, takes away the custody of the minor child from mother's mother, the custody becomes illegal and unlawful. In the instant case, I am clear in my mind that Mst. Farrah Akbar alias Shazia was under the custody of the petitioner till 13-10.1974, and the respondent removed her from the custody of the petitioner on certain pretext. His custody is not in accordance with law and thus, illegal/improper. The welfare of the minor lies in the restoration of the child to the petitioner.
9. For the foregoing reasons, I direct the respondent to restore Mst. Farrah Akbar to the petitioner.
The respondent, if so advised, can move the competent Court for appointment of guardianship of the person of the minor or seek some other remedy available to him. PLD 1970 Azad J & K 13 1968 P Cr. L J 1090 PLD 1968 Lah. 97 PLD 1965 Lah. 695 PLD 1969 SC 187 1973 P Cr. L. J 98 1973 PCrLJ 981 2 3 4 5 6 7