' This is a petition filed under section 491, Cr.P.C. By the mother (petitioner) against respondent Nei who is father of baby Mahnoor Khawaja, aged about 5-1/2 years.
2. The case of the petitioner is that despite dispute and some misunderstanding between the spouses, the custody of minor baby . Always remained with her, but, on 17-1-1999, i,e, Sunday, the respondent No,1 obtained the custody of minor baby from her (petitioner's) house with the assurance to send her to school on reopening of schools after Eid holidays i,e,, on 25-1-1999 but she was not sent till filing of the petition, i,e, on 28-1-1999. The petitioner has filed a certificate issued by the Principal, St. Michael's 'Convent School, Clifton, Karachi, dated 28-1-1999 which shows that baby Mahnoor failed to attend her school from 25-1-1999.
3. Respondent No,1 has filed his counter affidavit denying the allegations of the petition and stated that all along 'the custody of baby Mahnoor Khawaja was with respondent No,l. But, on 25-1-1999 at about 7-30 a.m. When he went to school to drop his daughter, his car was attacked by the petitioner and her father along with three unknown persons who all tried to snatch the custody of the minor from respondent No,1 but they failed in their design as the doors of the car were locked.
He, therefore, drove his car away from the scene. It is further stated in the counter affidavit by respondent No,1 that he filed a suit for declaration and permanent injunction in the Court of 15th Civil Judge, Karachi South and obtained ad interim injunction restraining the petitioner and her father from illegally removing the custody of minor baby from respondent No, I. Both the parties have levelled allegations of misconduct against each other.
4. During hearing of this petition one crucial question arose as to the treatment of eyes of the minor who is suffering from dermoid cyst in the left lateral carthus (left orbid). According to respondent No,
1. Baby Mahnoor needs immediate operation while the case of the petitioner is contrary to what respondent No,1 has said. In such circumstances, I directed the petitioner in whose custody the baby was handed over by this Court, to get her examined, by Dr. Muhammad. Mukhtar Ahmed and to submit report which she has filed today. It reads as follows-- "Baby Mahnoor Khawaja, age 5-1/2 years has been under my care since 8-10-1998. He has a dermoid cyst in the left lateral carthus. I have advised removal the same as soon as possible, because sometimes hair, teeth or even other body tissues can grow in such cysts.
' Mahnoor's father had taken the date for operation on 2-3-1999.
' Today mother, Irum S. Khan has turned up and tells me that there is a Court case to decide the custody of the child. She wants my opinion, which remains the same that the cyst should be removed. However it is not an emergency.
' Moreover, I would like to know who is the custodian/guardian of the child; because the Guardian has to sign the consent form for the operation. Therefore the operation is postponed until the earliest decision of the Court. In the meantime the child should be kept under observation and examined by an ophthalmologist at regular intervals of about six weeks."
5. In view of the above report of Dr. Muhammad Mukhtar Ahmed, I have given precedence to this case and have heard Ms. Aftab Bano Rajput and Mr. Haseebur Rehman, Advocates. It was argued by Ms. Aftab Bano Rajput that the custody of baby Mahnoor was with the petitioner and that it was entrusted to the respondent No, 1 on 17-1-1999 with the clear understanding, that after Eid Holidays, she will be sent to school from where the petitioner was to take the custody of minor, baby Mahnoor. According to the learned counsel for the petitioner deliberate failure of respondent No,1 to send the baby to school on 25-1-1999 and the filing of suit, amount to illegal removal of the custody of minor baby Mahnoor and, therefore, the instant petition is very much maintainable. She has relied upon the cases Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342, Mst. Mukhtar Mai v. Allah Rakhia NLR 1998 Cr.LJ 217 and Mst. Dilbar Jan v. Khan Muhammad 1992 PCr.0 683. On the other hand, it was argued by Mr. Haseebur Rehman that the custody of baby Mahnoor was never with the petitioner and that on 25-1-1999, the petitioner, her father and three other unknown persons attempted to forcibly snatch the baby and as a consequence, he filed a suit and obtained interim injunction against the petitioner and her father. It was further argued that the instant petition has been filed simply to harass respondent No,1. It was also argued by Mr. Haseebur Rehman that the petitioner has not approached this Court with clean hands and, therefore, she is not entitled for discretionary relief. He has also attacked the habits of the petitioner in leading her lifestyle and leaving her husband's house frequently. He has placed reliance on the following cases:-
(i) Mst. Naziran Bibi v. Shamira and 2 others 1998 PCr.LJ. 1027;
(ii) Mst. Zubaida Khatoon alias Aqleema Khatoon alias Parveen v. Saadullah A. Siddiqui and 4 others 1992 PCr.LJ. 690;
(iii) Jamshed Burke v. Jalal Masih 1996 PCr.LJ. 1453;
(iv) Mudabbir Ali Qureshi v. Mrs. Surriya Mudabbir and others 1995 PCr.LJ 30;
(v) Smt. Pari Bai v. Amrat Lal and others 1997 PCr.LJ 105.
6. In the case of Mst. Tauqir Fatima (supra), the baby involved was about 7 months old and in such circumstances, it was held that since according to Shia Muslim law, the custody of baby is to remain with mother till two years, the petitioner/mother was entitled to the same. In the case of Mst. Mukhtar Mai, (supra) a learned Single Judge of Lahore High Court granted a petition under section 491. Cr.P.C. Seeking custody of a six years old baby, after holding that the respondent did not obtain the custody of minor in a lawful manner. In the case of Mst. Didbar Jan (supra) the minor involved was the two years old son of the petitioner whose custody was obtained by his father through Faisla of Jirga. It was held by a learned Single Judge of this Court, Qaiser Ahmed Hamidi, J. While referring to the case of Mst. Khalida Begum v. Muhammad Altaf 1983 CLC 678 that there cannot be any substitute for a mother. It was further observed that the mother's lap is God's own cradle for a child and as between the father and the mother, other things being equal, a child, in the circumstances of a given case should remain with the mother.
7. Mr. Haseebur Rehman has vehemently relied upon the case of Mst. Naziran Bibi (supra) who filed a habeas corpus petition for her daughter aged about 5/6 years. In that case a learned Single Judge of Lahore High Court called the detenu and after examining her came to the conclusion that since the daughter was inclined to live with her father, the petition was dismissed and the petitioner was directed to approach the Court of Guardian Judge. In the case of Zubaida Khatoon (supra), custody of baby Resham who was about 12 years of age was involved. The reason for dismissing a habeas corpus petition filed under section 491, Cr.P.C. Was that the petitioner has abondoned her husband and was living with a total stranger which fact was endorsed by two brothers of the petitioner and was not rebutted by her. In the case of Jamshed Burki (supra), the custody of minors was removed deceitfully by the mother from the care and custody of father/petitioner and was delivered to her father respondent. In such circumstances, a writ of habeas corpus was granted and the respondent No,1 who was admittedly grand father of the minor was directed to deliver the custody to the father of the minors. In the case of Mudabbir Ali Qureshi (supra), a petition under section 491, Cr.P.C. Was dismissed on the ground, inter alia, that the minor was living in Saudi 1rabia, out of the territorial jurisdiction of the High Court and was in the custody of his father. In the last case, cited by Mr. Haseebur Rehman, Smt. Pan Bai (supra), a learned Single Judge of Sindh Nigh Court declined to issue writ under section 491, Cr.P.C. While following the rule laid down in the case of Ahmed Sami and 2 others v. Sandia Ahmed and another 1996 SCMR 268 as he came to conclusion that the father/respondent has not illegally removed the custody of five minors and they were living with their father for more than three months. It was held that for issuing any direction under section 491 Cr.P.C. With regard to custody of a minor, it is to be shown that such custody was illegally removed from the possession of the father. In the case of Ahmed Sami (ibid) the Honourable Supreme Court has reiterated the rule laid down in the cases Muhammad Javed Umroa v. Miss. Uzma Vahid 1988 SCMR 1891 and Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another PLD 1995 SC 633 where after it was held as follows:- .
"In the case before us, the admitted position in the case is that the two minors in the case were in the custody of respondent No,1 from July 1994 to 8th of September, 1994 when they were sent at the request of petitioner No,1 to his house for the purpose of meeting grandparents. The contention of respondent No,1 consistently was that the children were never sent back to her after they were dropped at the house of petitioner No,1 to meet the grandparent, while the petitioner No,1 contended before the learned Judge in Chambers that after two days namely, 10th of September, 1994 the children were sent back to respondent No,1 but she voluntarily returned the custody of the children to petitioner No,1 on the plea that the maintenance of the children was the responsibility of petitioner No,1. This latter allegation of petitioner No,1 is very vehemently denied by respondent No, 1.
We have noticed that in the notice which was served by petitioner's counsel on respondent No,1 on 19-11-1994. It was not alleged that respondent No,1 had voluntarily left the children at the house of petitioner No,1 after they were returned on 10th of September, 1988 having met with their grandparent. Respondent No,1 in reply to the above notice of petitioner's counsel, through her counsel, vide letter, dated 26-11-1994 had raised the plea that after the children were dropped at the house of petitioner No,1 at his request to meet the grandparents, the custody of children were never restored to her as promised. Keeping in view the above circumstances and the fact that the minors are aged about 4 and 2 years respectively, the order passed by the learned Judge directing restoration of the custody of minors to respondent No,1 who is their mother, cannot be described as arbitrary exercise of the power under section 491, Cr. P .0.......
8. It was argued by Mr. Haseebur Rehman that since the custody of the minor is with her father, it cannot be termed to be illegal and unauthorised detention and, therefore, no order could be passed under section 491, Cr.P.C. This plea even on factual plane is not correct. Respondent No,1 has attempted to make out a case of forcible abduction of minor baby at the hands of the petitioner, her father and three other persons on 25-1-1999. This story is neither confidence inspiring nor convincing. Respondent No,1 has failed to deny the fact that the petitioner is one of the senior staff members of St. Michael Convent School. Clifton, Karachi where their daughter/detenue is studying since 1996. If the petitioner had wanted to abduct her minor daughter and to deprive respondent No,1 of her custody, she could have easily done it during when she had full access, but, it was not done. The question as to why the petitioner and her father would resort to criminal force in order to obtain custody of baby Mahnoor when they had more than ample opportunity to remove such custody, was not satisfactorily explained by respondent No,l. The petitioner has filed copies of fees challans with her affidavit in rejoinder which further indicate that she is regularly paying tuition fee for her minor daughter. I do not see any reason why the petitioner will still pay tuition fees regularly since 1996 when she does not have custody of her minor daughter and when the responsibility to maintain her daughter lies equally on the shoulders of respondent No,1 being her father. All these facts support the contention of the petitioner that she had the custody of baby Mahnoor till 17-1-1999. As a temporary arrangement, the custody of baby Mahnoor was delivered to respondent No,1 with clear understanding that after Eid Holidays, he would send their baby to the school which was not done in the instant case and after filing of the instant petition and issuance of notice, the respondent No,1 filed the suit to frustrate the proceedings of this petition.
9. In the aforesaid circumstances which are, deducible from the contents of petition, counter affidavit and rejoinder, I am of the considered view that it is a proper case where powers of the High Court can be invoked under section 491, Cr.P.C. I may refer here to the case of Saadia Ahmed v The State and 3 others 1996 MLD 30, where this Court granted the petition under section 491, Cr.P.C.
And directed respondent No,2 to deliver the custod-_ to mother/petitioner despite the fact that there was allegation that mother had herself given up the custody of the minors and that she had lost her 'Hizanat'. Reference was made to the cases Hina Mani v. Sohail Butt PLD 1995 Lah. 151, Mst.
Nasim Akhtar v. Sheikh Gulzar Ahmed and 4 others 1995 PCr.LJ 474 and Muhammad Hiroku v.
Muhammad Latif 1994 MLD 1682. In the last cited case, a learned Single Judge of Lahore High Court granted custody to the petitioner subject to final order to be passed by the Family Court. In that case, one of the reasons prevailed upon the Lahore High Court was the tender age of minor who at the relevant time was six years old.
10. Admittedly, both the parties belong to Sunni faith and as per right of 'Hizanae, mother is entitled to the custody of a female child until she attains the age of puberty. The detenu is also suffering from some eye disease and, therefore, supervision of her mother is very necessary. On 2-2-1999, custody of baby Mahnoor who was produced by respondent No,1 on that day, was temporarily handed over to the petitioner. On 12-2-1999, interim arrangement was made whereby respondent No,I was permitted to collect the custody of baby Mahnoor on each and every Sunday at 12-00 noon from the petitioner's house and to return the same on the same day at or before 5-00 p.m.
With this tentative arrangement, this petition is accepted. Custody of baby Mahnoor Khawaja shall remain with the petitioner/mother subject to the above arrangement until a fmal order is passed by the Guardian and Wards Court. During this period, the petitioner shall keep baby Mahnoor under constant supervision of an eye specialist and shall submit report after every six months with the Registrar of this Court. All the observations made hereinabove are tentative and shall in no manner prejudice the decision of the Guardian and Wards Court, if it is invoked.