' Mst. Mukhtaran Bibi alias Kalo Bibi filed a petition under section 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking recovery of her suckling daughter Allah Rakhi aged 1-1/4 years from the custody of Muhammad Yousuf, her ex-husband. According to the averments made in the petition, Younas (respondent No,2) and his son Muhammad Yousaf (respondent No,3) on 8-7-2002 entered the house of the petitioner and took away the alleged abductee, who was lying on a cot in the courtyard. The mother of the petitioner got a case registered under section 363, Pakistan Penal Code but no action was taken. The petitioner after having failed in her efforts to get back her daughter through the police moved the instant petition stating that Allah Rakhi is breast-suckling baby. She apprehended that she would die of hunger without breast-feeding. On 13-8-2002, keeping in view the contents of the petition, a direction was passed to the S.H.O., Police Station, Phool Nagar, District Kasur to recover the infant and produce her before this Court on 19-7-2002.
Haji Qasim, S.-I./S.H.O., Police Station Phool Nagar failed to produce the alleged detenue on the last date of hearing. The instant petition was to be taken up on 2-9-2002 but on an urgent petition filed on behalf of the learned counsel for the petitioner, the office has put up this case today after obtaining necessary permission from the Honourable Chief Justice. Haji Qasim, S.-I./S.H.O., Police Station Phool Nagar has produced the alleged detenue. According to respondent No,3, who happens to be the father of the child, the facts stated in this petition are false and as a matter of fact the custody of the alleged detenue was handed over to him by the petitioner herself in lieu of divorce and since then the baby has been putting up with him. He produced an agreement, which shows that the petitioner herself relinquished the custody of the minor at the time when she obtained Talaq.
2. Learned counsel for the respondents submitted that the custody of the minor with his father is not illegal in any manner. He further submitted that the petitioner suppressed certain material facts from this Court as such she is not entitled to take the custody of the minor by invoking the Constitutional jurisdiction. He submitted that the petitioner may be directed to approach the proper forum for obtaining the custody of the minor.
3. I have considered the arguments. According to the petitioner, the alleged victim is one year and three months old, who cannot live without breast-feeding as such it would be in the interest of the minor that she should be given in the custody of the petitioner. At this stage, it is not possible to determine the exact age of the alleged abductee but in any case, she is not more than two years of age as admitted by respondent No,3, himself. The minor girl is hardly two years of age. She should not be deprived of the natural love and affection of her real mother. It was in fact the right of the minor to be in the custody of her mother. Even if it is assumed that the petitioner herself had relinquished the custody of her minor girl for obtaining divorce, the minor's right to remain in the custody of her mother does not terminate unless she is held disentitled to retain the custody of the minor; therefore, the minor is ordered to be given in the custody of the petitioner immediately. The respondent/father may approach the Court under the Guardians and Wards Act, if so advised. This petition stands accepted. #EndJudgment