' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Nisar Muhammad and his second wife, namely, Mst.
Sultan Begum alias Kacoo, petitioners, seek leave to appeal against the judgment dated 21-5-1997 of the learned Chief Justice of Peshawar High Court whereby Habeas Corpus Petition No,1 of 1997 filed by Mst. Sultan Zari respondent, the first wife of petitioner No,1, seeking the custody of five, out ()Night children, born out of her marriage with petitioner No,1, was accepted and they were handed over to her.
2. The facts of the case, as narrated in the impugned order, are that out of marriage of Mst. Sultan Zari respondent with petitioner No,1, -8 children, as detailed in Annexure 'A', including the 5, namely, Mst. Shaukat aged 8, Mst.Fr Zainab aged 7, Fazal Sajjad aged 5, Tufail Ejaz aged 3 and baby Saima aged 2 years were born to them. Petitioner No,1 is said to have been exerting pressure upon the respondent to give consent to his second marriage to which she was adamant. His initial attempt was foiled by her as her brother's Habeas Corpus Petition in the High Court was fructified on compromise between the spouses. It was for the second time that she was allegedly turned out of his house by her husband without allowing her to take along with her, her 8 children. Petitioner No,1 conceded before us that he had since contracted second marriage with Mst. Sultan Begum alias Kacoo. Both the petitioners are alleged to have confined the children illegally and were not allowing the respondent to take them along with her. Petitioner No,1 alone controvered in his reply the assertions aforesaid besides assailing the jurisdiction of the High Court to entertain the Habeas Corpus Petition. The legal objection qua the lack of jurisdiction in the matter of the custody of children between the husband and wife, however, did not find favour with the learned Chief Justice who observed as under:-- "Section 491 Cr.P.C. Envisages to deal with a person detained illegally or improperly either in public or private custody and to direct to set him at liberty if the detention was found to be illegal or improper. If the detention is found to be improper as in case of the minor children by person other than legal guardian then the High Court in exceptional cases can restore the custody to the person who has been forcibly deprived of it by way of interim relief. This order of interim custody will be subject to the final adjudication by the Guardian. Judge whose order would ultimately regulate the custody."
3. On the question of grant of interim relief, the learned Chief Justice held the view that out of eight children, five, namely, Mst. Shaukat, Zainab, and Baby Saima were respectively aged 8, 7 and 2 years while Fazal-e-Sajjad and Tufail Ejaz were respectively 5 and 3 years of age; that the respondent being the real mother of the three very small daughters and the two sons was prima facie entitled to be "in a proper position to look after them unless it is proved otherwise in the proceedings regarding appointment of guardian if initiated before the Guardian Judge". The petitioners were accordingly directed to make over the custody of Mst. Shaukat, Mst. Zainab, Fazal- e-Sajjad, Tufail Ejaz and Baby Saima minors to the respondent "who would keep them along with her till the factum of their custody is determined by a Guardian Judge or till they become majors as the case may be".
4. Mr. Muhammad Arif Khan, learned Advocate Supreme Court, appearing on behalf of the petitioner, reiterated the contention that it was open to the respondent to apply for being appointed as guardian of the person of the minors under the Guardians and Wards Act, 1890 and that so long as such a remedy was available, section 491, Cr.P.C. Was not a proper remedy to be invoked. In support of this proposition, he placed reliance on the two precedent cases: (1) Mst.
Shaheen v. Zia Muhammad (PLD 1994 Peshaw.Ar 143) and Mrs. Suhair Mamdouth Sudki. Deais Dar v.
Nabeel Dar and another (1996 SCM R 1083).
5. In the first precedent case of Mst. Shaheen (supra), the reasons that weighed with the learned Single Judge of Peshawar High Court for not issuing a writ under section 491, Cr.P.C. Were that even her second marriage had broken and had been divorced by her husband; that she was not even presently residing with her parents and further the aforesaid 'allegations were correct and whether these really go to affect the welfare of the minor and conversely, whether the father is properly maintaining the son, required thorough evidence which could only be done before a Guardian Court and which can be appropriately approached by the mother. The son of Mst. Shaheen petitioner was aged 2 years and 8 months at the relevant time and we regret that this being the case whether jurisdiction under section 491, Cr.P.C. Should not have been exercised by the learned Judge notwithstanding the reasons that had prevailed with the learned Judge to decline issuance of writ under section 491, Cr.P.C. The learned Judge seems to have mixed up the proceedings under section 491, Cr.P.C. And those under various provisions of the Guardians and Wards Act, 1890. The custody of the male child of such a tender age as 2 years and 8 months perhaps could have been provisionally given to the petitioner-mother in the case of Mst. Shaheen (supra). Legally by their very nature and purport proceedings under section 491, Cr.P.C. Are summary in character. We are conscious of the purpose governing the subject that controversies are not tried nor entire evidence recorded under ordinary substantive and procedural laws, civil and criminal. The only question was whether the detention of the child by the father was illegal at the time when the application was made. If it was so, then the other considerations apart, which had to be determined by the Guardian Judge in the proper proceedings, the custody could have been provisionally given to the petitioner therein leaving all other matters to the Guardian Judge for determination. We are, therefore, not inclined to approve the principle enunciated in Mst. Shaheen's case (supra).
6. In Mrs. Suhair's case (supra) (1996 SCM R 1083), the learned Judge in the High Court. During the pendency of the proceedings for the custody of the minor son of the petitioner named Afzal Nabeel Dar, ordered for his production in the High Court while seized of the application under section 491, Cr.P.C. The High Court ordered the respondent to hand over the child to the mother and further directed the petitioner to produce him on every ensuing date of hearing in the High Court. An apprehension was expressed by the respondent-father that the petitioner who was Jordanian National was likely to take the child to Jordan out of the jurisdiction of the High Court. Nonetheless, even the question of interim custody was directed to be adjudicated upon by the Guardian Judge who was already seized of the matter. In the caveat filed by the respondent in the case and the contention of his counsel, was that the petitioner, taking advantage of the interim custody through the order of the Supreme Court, had taken away the child to Jordan. It was in this factual background that the learned Judges of this Court in Mrs. Suhair's case (supra) observed that they were unable to find any infirmity in the order dated 17-4-1994 that the question of interim custody of the minor should also be decided by the Guardian Judge and thus leave to appeal was refused.
It would thus be seen that the exercise of jurisdiction by the High Court under section 491, Cr.P.C.
Directing to hand over the custody of the minor child to the petitioner-mother was affirmed subject to the ultimate decision of the Guardian Judge on the aforesaid matter as well. The distinguishing features between the case of Mrs. Suhair and the one in hand before us are too obvious to warrant further comments. Nonetheless, the ratio of the latter case seems to support the proposition that the High Court has got the jurisdiction to hand over a minor child to the personal legally entitled while exercising the jurisdiction under section 491, Cr.P.C. In pre and post-partition era in the sub- continent, proceedings by way of Habeas Corpus had been taken to the High Court for obtaining custody of the minors by their parents. Legal guardians, or others who were entitled to have such custody under their respective personal laws. In S. Rama Iyer v. K.V. Nataraja lyer (AIR (35) 1948 Madras 294) the principle laid down was that a habeas corpus proceeds on the fact of an illegal restraint. According to the learned Judges when the writ, if obeyed, and the party brought up is capable of using a discretion, the rule is simple, viz., the individual who has been under the restraint is declared at liberty, and the Court will even direct that the party shall be attended home by an officer to make the order effectual. But where the person is too young to have a choice, it must be referred to legal principles to see who is entitled to the custody, because the law presumes that where the legal custody is, no restraint exists. In Mushtaq Ahmad v. Mirza Muhammad Amin and another (PLD 1962 (W.P.) Karachi 442), the relevant observations made by the learned Judges of a Division Bench are as under:-- "As regards the second contention it has to be noted that a writ of habeas corpus is a writ of right though it may be that it is not granted as A matter of course. In Halsbury's Laws of England. Vol.II, 3rd Edition, page 34, para.60, it is stated that -- 'a husband is at common law entitled to the custody of his wife against all other persons, and the writ of habeas corpus is available to a husband for the purpose of regaining the custody of his wife if she is wrongfully detained by anyone from him without her consent.'
' It has also to be noted that the writ petition before us is directed for the purpose of the release of the girl from a custody in which she had been kept against her will. The writ is, therefore, primarily for her benefit though it may be that the husband indirectly benefits from it. The conduct of the husband, therefore, cannot be pleaded against the Issuance of a writ. Even if the girl is a child under the definition of the Child Marriage Restraint Act she has not been made liable to punishment in respect of such a marriage. We, therefore, see no force in this contention as well."
7. Again another principle to be adhered to in this matter is that the availability of another remedy at law, such as the remedy under the Guardians and Wards Act for obtaining custody of a minor child is not a valid ground for refusing an application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by another person". In this context reference can be profitably made to the case of Mst. Rizwana Bokhari v. Abdul Majeed Shah and another' (1984 PCr.LJ 2582).
8. The proposition canvassed before us by Mr. Muhammad Arif Khan, learned counsel for the petitioner, was also addressed by this Court in an earlier case of Muhammad Rafique v.
Muhammad Ghafoor (PLD 1972 SC 6). At page 8 of the report, the learned Judges of this Court observed:-- "The High Court has two-fold jurisdiction under this section (491, Cr.P.C.).--(i) to deal with a person within its appellate criminal jurisdiction according to law and (ii) to set him at liberty if he is illegally or improperly detained. The 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 what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not."
9. In the judgment of Mst. Rizwana Bokhari's case (supra), Muhammad Munir Khan, J. (as his Lordship then was) had rightly laid down the law which we are inclined to approve that on examination of the various provisions of Muslim Law, the Criminal Procedure Code, particularly its section 491, Cr.P.C. And sections 361 and 363 of the P.P.C. Indicate that mother is entitled to 'hizanat' of her male child below the age of 7 years, failing that the mother's relations under Muslim Personal Law are entitled to the custody of the minor. Since the two male minors in this case are admittedly below 7 years in age and the three females have not yet attained puberty all the three being less than 8 years, the respondent is, therefore, prima facie entitled to 'hizanat' of all the 5 for the limited purpose of section 491, Cr.P.C. At the moment and the rights of the petitioners to the custody of the aforesaid minors has not accrued so far. In these circumstances, the custody of the aforesaid minors with the petitioners was, therefore, rightly declared illegal or at least improper by the learned Chief Justice of the Peshawar High Court. The learned Chief Justice was also justified to have expressed more than once that ultimate determination of entitlement of the custody shall of course lie with the Guardian Judge to whom the parties were directed to approach, if they so desired.
10. All said and done, we may express here a word of caution that the jurisdiction of the High Court under section 491, Cr.P.C. Is in its very nature is extraordinary and, therefore, should be sparingly used because the plenary jurisdiction in the matter rests under other laws in other forums of special jurisdiction who should be normally allowed to exercise it in accordance with law. In Ch. Noor Hussain v. The State (1983 PCr.LJ 796), a case from Azad Jammu and Kashmir's jurisdiction, we approve the law enunciated by the Supreme Court of Azad Jammu and Kashmir that the High Court of course will be very slow and sparing in exercising these extraordinary powers in the cases brought before the Courts under section 491, Cr.P.C. It is in the cases of real urgency when in the sphere of minor's custody that exercise of such a power would be permissible. Generally, however, the ordinary forum to deal with the matter of custody of the minors should not be deprived of the exercise of the plenary jurisdiction who would decide the matter after recording evidence and then determine where the welfare of the minor lies for the purpose of custody. It is perhaps on this score that the orders passed by the High Court under section 491, Cr.P.C. In the sphere of the custody of the minors have been rarely brought under challenge in this Court.
12. Resultantly, we find no substance in this petition which is accordingly dismissed.
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