Iftikhar Muhammad Chaudhry, J.--This petition has been filed against the judgment dated 8.7.2003 passed by a learned Single Judge of Lahore High Court, Lahore, whereby habeas corpus petition filed by the petitioner Mst. Khalida Perveen d/o Muhammad Ramzan for recovery of her daughter aged about two years namely Hina Sultan alias Umm-i-Romaan, from the custody of her father Muhammad Sultan Mehmood has been dismissed.
2. In this case, parties being husband and wife parted their ways on account of dissolution of marriage tie between them. They had a female child of two years old who was allowed to remain in the custody of her father in pursuance of a document written between the parties. Subsequently, Mst. Khalida Perveen, petitioner approached the learned High Court by invoking its jurisdiction under Section 491 Cr.P.C. but relief so claimed by her was declined vide impugned judgment dated 7.8.2003.
3. Learned counsel appearing for the petitioner stated that the minor being two years of age has got a right guaranteed her to live with her mother till the time of her attaining puberty according to the Muslim Shariat and she cannot be deprived from her such right merely on the basis of a document which has been executed between the parties as per their convenience. He further stated that there are number of cases wherein such document written between the parties at the time of dissolution of the marriage relating to the custody of minor have not been considered to be a binding document because the supreme consideration is the welfare of the minor. According to him as the age of minor is two years therefore, except the mother, no one else is legally entitled to keep her custody as after solution of marriage she had not contracted second marriage. Even otherwise, petitioner is not in the adverse interest of the minor in any manner, therefore, the learned High Court instead of entering into the technicalities of law in the interest of justice and to watch the supreme interest of the minor may have allowed her custody to the mother. Learned counsel to substantiate his plea, relied upon Muhammad Naseer Humayon vs. Mst. Syeda ummatul Khabir (1987 SCM R 174).
4. Learned counsel appearing for the respondent vehemently opposed the petition on the ground that Respondent No, 1 was not retaining illegal custody of the minor because he being the father was natural guardian, thus he was fully qualified to keep her custody with him. He further explained that petitioner herself handed over custody of the minor to the father at the time of dissolution of the marriage by executing a document therefore, in such like situation, petition under Section 491 Cr.P.C. was not competent and if the Superior Courts will entertain habeas corpus petition against father then nobody would approach the Family/Guardian Judge for the change of custody and the relevant provisions of Guardian and Wards Act, will become redundant.
5. We have heard learned counsel for the parties and have also gone through the available record carefully as well as the impugned judgment. It is to be noted that the learned Judge in Chambers of the High Court had not decided the case keeping in view the relevant provisions of the law but had deprived the mother from the custody of her minor female child for the reasons that minor had emotional attachment with her father-respondent namely Muhammad Sultan Mehmood.
Relevant para from the said judgment is reproduced herein below to substantiate that the judgment has not been written on consideration of law points.
Even today the response of the alleged minor detenue shown towards her mother is devoid of emotional attachment. In this situation it is not considered proper that the detenue should suffer in her attachment or other emotional towards her father, the petition is dismissed."
In our opinion in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking.into consideration welfare of the child. Although ordinarily a petition under Section 491 Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the Courts could also pass appropriate orders in exercise of its inherited jurisdiction. In this behalf in the judgment relied upon by the learned counsel for the petitioner i,e, Muhammad Naseer Humayon vs. Mst. Syeda Ummatul Khabir (supra), a learned Judge of the High Court changed the custody in exercise of the jurisdiction under Section ,491 Cr.P.C. and against the said order, petition for leave to appeal was filed before this Court but leave was declined keeping in view the fact that the parties have parted their ways and the minor is of a tender age. As same situation is in the case in hand where the respondent had divorced the petitioner and the age of the minor is also two years therefore, following the observation from the reported judgment, we are of the opinion that in the interest of justice as well as for the welfare of the minor Hina Sultan alias Umm-i-Romaan aged two years, the petitioner being mother is entitled to retain her custody.
6. Thus, petition is converted into appeal and allowed as a result whereof the impugned judgment is set aside and the custody of the minor Hina Sultan alias Umm-i-Roman aged two years is handed over to the petitioner Mst. Khalida Perveen, with the observation that parties shall be at liberty to approach the Guardian Judge for redressal of their grievance if any. The Guardian Judge shall deal with the matter independently, if proceedings are instituted before him, in accordance with law without being influenced in any manner from the observation made herein above.