1. ' By this application under section 491, Cr.P.C. Applicant Mst. Sarwar has sought following reliefs:--
(a) That this Honourable Court may be pleased to issue direction to respondent to produce the minor female child namely, baby Sanam aged 7-1/2 years detained in his house situated in near Lahori Regulator, Larkana within the jurisdiction of Police Station Civil Line, Larkana or the minor may be produced through the concerned police and after this Honorable Court is satisfied about unlawful and unnatural detention, the custody of above named minor be restored to the applicant.
(b) Any other relief which this Honorable Court may deem fit and proper be granted to applicant.
2. ' The brief facts of the case are that about 8/9 years back applicant Mst. Sarwar was married with respondent Mukhtiar Ali. After some time, the relations between the parties became strained and it became impossible for the spouses to live within the limits prescribed by Almighty Allah. The marital tie was, therefore, broken and the respondent divorced the applicant. At the time of divorce the applicant was pregnant and after few months she gave birth to a female child namely baby Sanam in the house of her parents, who is now aged about 7-1/2 years.
3. ' It is stated that since birth baby Sanam was living with the applicant and she was brought up by her mother (applicant). She sufferred her educational expenses, etc. Whereas the respondent did not care to maintain the minor girl baby Sanam who was the result of the wedlock.
4. ' It is further averred that in the month of April, 1998, the respondent forcibly took away baby Sanam from the house of applicant and has detained her unlawfully.
5. ' The respondent has filed objections by way of affidavit, wherein he has averred that his marriage with the petitioner was an exchange marriage and Mst. Husna sister of respondent was married with Muhammad Ali brother of the applicant. Subsequently, relations between, the parties became strained and matter was placed before the Nekmard Syed Soofan Shah and as per the decision (Faisla) of the Nekmard on 28-3-1993 both parties divorced their wives. At the time of divorce the age of baby Sanam was about 3 years. The decision (Faisla) referred above was reduced in writing whereby the parties stood divorced and it was further agreed between them that minor baby Sanam will live with her mother (applicant) for five years more and during the period of her stay with her mother (applicant) and Wali Dino her maternal grandfather will maintain the minor baby Sanam, and that on attaining the age of eight years custody of minor girl baby Sanam would be handed over to her father (respondent) and the decision arrived at between parties would not be challenged by them. It was, thus, averred that in terms of that decision baby Sanam was handed over to respondent by one Ahmed Ali and Sher Muhammad through Nekmard Syed Soofan Shah.
6. ' It is stated that in spite of the abovementioned decision (Faisla) on 28-4/1998, the applicant filed Guardianship proceedings which are sub juice in the Court. It is further stated that the applicant has not acted upon the decision (Faisla), therefore, she is stopped from claiming the guardianship of the minor. Moreover, in the trial Court the minor baby Sanam also gave her preference to the respondent and she was not inclined to live with the applicant (mother). The counsel for respondent applied before the trial Court for the copy of the order granting temporary custody of minor baby to the respondent but no such order was available in the case file. He has further stated that he has not obtained the custody of the minor girl baby Sanam by force, but she was handed over to him in terms of decision, dated 28-3-1993 made by their Nekmard Syed Soofan Shah. Moreover, the girl is old enough to form her intelligent preference which should be preferred as contemplated under section 17 subsection -(3) of the Guardians and Wards Act, 1890.
7. ' It is also stated that the minor girl is happy with respondent and he has got her admitted in School where she is getting education. The welfare and happiness of the minor girl would be in living with the respondent and not with the applicant as the girl can be properly maintained by him. He has also averred that the matter relating to guardianship is pending before the Guardian Judge and the present proceedings are devoid of jurisdiction/coram non judice. In support of the contentions of the respondent one Syed Soofan Shah has also filed his affidavit.
8. ' Applicant Mst. Sarwar has filed affidavit-in-rejoinder, whereby she has denied the averments made by the respondent in his counter-affidavit. She has states that so-called decision (Faisla) is managed and maneuvered one and she has no knowledge of it at all. Syed Soofan Shah or anybody else is/was not authorised to decide the fate of applicant and her minor daughter baby Sanam. She has averred that in fact minor baby Sanam was forcibly removed from her custody.
9. The calling of minor by the Guardian Judge and her preference has been specifically denied and it is stated that no such thing happened at all. So far baby Sanam's preference is concerned, it is stated that she is of tender age and was harassed and brain washed by the respondent, therefore, her preference cannot be termed as an intelligent and independent preference and her welfare lies in living with applicant. The applicant has also filed School Leaving Certificate which shows that on 10-4-1996 minor baby Sanam was admitted in Government Primary School, Ghouspur and was studying in Class III and from 21st April, 1998 her studies have been discontinued and she is no more studying in the school and her name has been removed from the roll of school.
10. ' Both the parties in support of their contentions have also filed more affidavits along with statements of their counsel.
11. ' On 27-1-1999, when this matter came up before me, I issued Rule Nisi for the production of minor girl baby Sanam and on 29-1-1999 she was produced in Court by the respondent when she declined to go to her mother.
12. ' Learned counsel for the applicant in his arguments reiterated the facts averred in the application as well as in affidavit:in-rejoinder filed by the applicant and has placed reliance on the case of Iffat Mir v. Mobeen Qasim Mir reported in 1991 PCr.LJ 2372, Shagufta Andleep v. Abdul Razaq and another reported in 1992 PCr.LJ 2168, Rubina Ali v. Rafaqat Ali reported in 1997 M LD 2066 and Muhammad Javed Umrao v. Miss Uzma Vahid reported in 1988 SCM R 1891.
13. ' Learned counsel for the respondent in his arguments reiterated the facts averred in the affidavits and placed reliance upon the case of Mrs. Suhair Mamdouth Sudki Deais Dar v. Nabeel Dar and another reported in 1996 SCMR 1086.
14. ' I have heard the learned counsel for the parties as well as perused the material placed on record.
15. ' Admittedly, the alleged detente baby Sanam is a minor girl aged about 8 years and this fact is also evident from her school leaving certificate placed the record and this is not controverted by the respondent. It is also not disputed that the minor baby was living with her mother till April, 1998.
16. It is, crystal clear that the custody was obtained by respondent (father) without having recourse of law, therefore, it would be illegal. There cannot be any substitute for a mother. The mother's lap is God's Cradle for a child. The mother is a suitable person to take the charge of the child. It is quite impossible to find any adequate substitute for custody of the child of tender age and mother is preferable to a father in such cases.
17. ' In the case of Iffat Mir v. Mobeen Qasim Mir reported in 1991 PCr.LJ 2372 it was held that according to Muslim Law mother is entitled to custody of minor child as it would be presumed that welfare of minor lay in his living with mother. It was further observed that father no doubt was natural guardian of minor, but he could not hold and retain the custody of minor forcibly and against the wishes of mother of minor who in law is entitled to custody of minor. The father could not hold and retain custody of minor, without obtaining proper orders for such custody from Court of competent jurisdiction. Where father obtains custody of his minor child without having recourse to law, his custody would be illegal and in such a case this Court was competent to exercise jurisdiction under section 491, Cr.P.C. For the restoration of the custody to mother of the minor.
18. ' In the case of Mst. Naushabah Tabassum v. Ghulam Madni Shah 1987 PCr.LJ 1318 and 1987 PCr.LJ 1318 the father took away minor daughters unlawfully. The jurisdiction under section 491, Cr.P.C. Was invoked and custody of minor daughters was restored to the mother.
19. ' In yet another case of Nasidi Akhtar v. Shaikh Gulzar Ahmed and others reported in 1995 PCr.LJ 474, the minor girl was removed from the custody of her mother without recourse to any legal procedure. The proceedings under section 491, Cr.P.C. Were initiated and this Court observed that the removal of the minor girl from the custody of mother without recourse to any legal procedure was illegal. The mother under the law has the right of the Hizanat of her minor daughter till the age of her puberty and custody of the minor girl was given to the mother.
20. ' In the case of Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri reported in 1994 PCr.LJ 1361 it was laid down that Sharia recognizes right of Hizanat of the mother in respect of minor girls and the welfare of minor daughters lies in granting their custody, to their mother unless she is shown to have disqualified herself by her own conduct. It was further held that the grant of custody of the minors to mother is not in violation of any principle enunciated by Sharia and on consideration of spiritual as well as moral welfare of the minors, mother did not stand disqualified when she is a Muslim and she realises her duty to bring up the minors in accordance with the tenets of Islam. The custody in the reported case was handed over to the mother.
21. ' In the case of Mst. Nusrat Jehan v. Muhammad Siddiq Khan and others reported in 1993 PCr.LJ 522, which related to the proceedings under section 491, Cr.P.C. a Bench of this Court restored the custody of the girl of 10 years to her mother.
22. ' It will be pertinent to reproduce herein the relevant provisions of Muhammadan Law relating to Guardianship and custody of a minor child and also opinion of eminent Muslim Scholars/jurists for the sake of ready reference. Section 352 of Muhammadan Law by D.F. Mulla lays down as under:-- "Section 352. 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."
23. ' According to Hazarat Imam Abu Hanifa a person becomes an adult on the expiration of the fifteenth year of his or her age but if any of the symptoms of puberty appear at an earlier age majority commences therewith. Hazrat Abu Yousif and Hazrat Muhammad both disciplies of Hazrat Imam Abu Hanifa maintain that upon a baby's as well as a girl's attaining the age of fifteenth year he or she is to be declared adult. The opinion of Hazrat Imam Abu Hanifa corroborated by his two disciples mentioned above was also accepted by the Shafi's, Hambalies and Malkies. Thus, it is to be taken as law on subject of majority. As per Jami-ur-Ramuz the majority of abbey is established upon his being subject to nocturnal emission, or his impregnating a woman or emitting in the act of coition, and that of a girl upon nocturnal emission, menstruation, or pregnancy but if none of these is found then upon completing the fifteenth year.
24. ' In Hidaya, Book at XXXV Chapter at page 529 it is laid down that when a boy or girl approaches the age of puberty and they declare themselves adult, and their outward appearance indicates nothing contrary to their declaration must be credited, and thence they will become subject to all law affecting adults.
25. ' In this connection in Fatawa-i-Alamgiri, it is reported in Article DLXVI of Al-Sharia, that the mother is, of all the persons, the best entitled to the custody of her infant child during marriage and after separation from her husband unless she be an apostate, or wicked, or unworthy to be trusted.
26. ' During the course of arguments it was stated on behalf of the applicant that she did not contract second marriage for the sake of her minor daughter. The sole aim of the applicant in her life is the uplift of her only daughter. After removal of minor daughter baby Sanam by the respondent her studies discontinued and he has got her name struck off from the school. In the circumstances the welfare of minor would be in handing over the custody of minor daughter to the applicant.
27. It is admitted that petitioner/applicant has not contracted second marriage. The studies of the minor daughter baby Sanam have been discontinued since the time of her removal from applicant's custody as is evident from the school leaving certificate. The respondent has not placed any material or document on record from which it could be deduced that respondent got minor daughter baby Sanam admitted in any educational institute. Admittedly the respondent is a police employee and off and on he remains out either in connection with his duties or by way of transfer. There is nothing on the record which showed or suggested that the petitioner is living in obnoxious atmosphere. The paramount consideration is welfare of minor in consonance with the injunctions of Sharia. The case-law cited hereinabove and the dictums laid down by the eminent Muslim Scholars and jurists show that in the peculiar facts and circumstances of this case the applicant is entitled to the custody of her minor daughter baby Sanam who was unlawfully removed from the custody of applicant i,e, mother.
28. ' Now I will advert to the contention whether applicant is estopped from challenging the validity of the Faisala (decision) arrived at between the parties at the instance of Nekmard Soofan Shah, whereby applicant was divorced and it was decided that the custody of minor baby Sanam on attaining the age of eight years would be handed over to the respondent. My answer is in negative for the reasons mentioned hereinunder:-- ' The applicant has specifically denied execution of such (Faisla) decision and even knowledge thereof. She has averred that so-called decision (Faisla) is managed and manoeuvred one and Soofan Shah or anybody else is not competent and authorised to decide the fate of applicant and her minor daughter baby Sanam who according to her was forcibly removed from the applicant's house. The perusal of alleged Faisla/decision (Talaq Nama) shows that applicant was not party to it and it does not bear the signature or thumb-impression of the applicant.
29. ' In the case of Dilbar Jan v. Khan Muhammad reported in 1992 PCr.LJ 683 minor was allegedly taken away forcibly from mother by her previous husband who was father of the child and it was contended that the- father received the child under the Faisla of Jirga. The Bench of this Court held that plea of father could not be determined in summary proceedings and mother being legal guardian of minor who all along remained with'her was entitled to custody of the minor. The father was directed to hand over the custody of the child to the mother.
30. ' In view of the above facts and circumstances applicant is not debarred from challenging it's validity and effect.
31. The contention of the learned counsel for the respondent that applicant can only seek remedy before Guardian Judge under Guardians and Wards Act, 1890 and application under section 491, Cr.P.C. Is not maintainable has no substance and it is misconceived. This Court is competent under section, Cr.P.C. To entertain such an application and to pass orders for restoration of custody which has been illegally or improperly taken.
32. ' In this context, I am fortified by the decision of the Honourable Supreme Court in case of Nisar Ahmed v.. Sultan Zari reported in PLD 1997 SC 852. The relevant dicta of Honourable Supreme Court is reproduced herein below:-- "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 Guardian 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."
33. In this context, I am also fortified by the decisions in cases of Rubina Ali v. Rafaqat Ali and others reported in 1997 M LD 2066, Shagufta Andleep v. Abdul Razaq and another in 1992 PCr.LJ 2168, Iffat Mir v. Mobeen Qasim Mir reported in 1991 PCr.LJ 2372 and Azra Bibi v. Muhammad Rafiq reported in 1994 PCr.LI 2570.
34. So far the preference of baby Sanam as contemplated under section 17(3) is concerned it is for the Guardian/Family Judge to decide before whom proceedings of Guardians and Wards Act are pending. It will not be out of place to mention that baby Sanam was produced by the respondent and admittedly, she is in his custody from April, 1998. She parted from her mother the applicant herein for more than 9 months, therefore, the possibility of brain wash or of harassment caused to a little girl of tender age who is living in rural area cannot be ruled out under peculiar facts and circumstances of this case. Her preference cannot be termed as an independent and intelligent preference. However, it is again reiterated that it is for the Guardian Judge to decide the issue and not this Court under its summary jurisdiction.
35. ' The upshot of the above discussion is that the application under section 491, Cr.P.C. Is allowed and respondent is directed to hand over the custody of minor baby Sanam to the applicant Mst. Sarwar Kalhoro who is mother of this minor. #EndJudgment