Mst. NAYYRA NOUREEN @ SHAZIA vs M. ARIF BUTT SABRI
This matter arises from a petition filed under Section 491 of the Code of Criminal Procedure 1898 by the petitioner mother seeking the production and custody of her three minor children from the respondent father. The core legal question was whether the custody of the minors with the real father, who had been living with him for about a year and a half after the petitioner left the house, constituted illegal or improper detention warranting interference under habeas corpus jurisdiction. The Lahore High Court held that the custody of the minors with their natural father cannot be termed illegal, especially when the children remained in his house when the petitioner left, and where the petitioner had already availed an alternate and efficacious remedy by filing an application under Sections 12 and 25 of the Guardian and Wards Act 1890 before the competent Guardian Court. The petition was accordingly dismissed with directions to the Guardian Court to decide the pending interim custody application expeditiously.
- Whether the custody of minor children with their natural father can be termed illegal under Section 491 of the Code of Criminal Procedure 1898 when the children were left behind by the mother?
- Does the availability of an alternate remedy under the Guardian and Wards Act 1890 affect the maintainability of a habeas corpus petition for minor custody?
- Can a petition for the production of minors under Section 491 of the Code of Criminal Procedure 1898 be maintained when proceedings under Section 25 of the Guardian and Wards Act 1890 are already pending?
- Section 491, Code of Criminal Procedure 1898
- Section 12, Guardian and Wards Act 1890
- Section 25, Guardian and Wards Act 1890
ORDER
The respondent has produced the minor children namely Muhammad Hassan, Muhammad Hussain and Mst. Abida Butt.
2. The petitioner Mst. Nayyra Noureen @ Shazia through the instant petition under Section 491 Cr.P.C. has sought for the production of he aforementioned three minor children from the custody of the respondent and their handing over to her.
3. After hearing the learned counsel for the parties and perusing the copies of the documents annexed to the petition, I find that it is the own erosion of the petitioner in the petition that these minors were in the house of the respondent, when she was turned out by him, from there. So, it is not case of removal of these children by the respondent from the custody of the petitioner.
4. He is their real father. The children were living with him when i,e, petitioner had left his house.
5. They admittedly now are living with him for the last about 1% cars. The petitioner herself has admitted it to be so. She has also admitted Fiat they are more familiar to the respondent than her.
The children are with the respondent with all case and familiarity. She has also not explained the petition that why she did not earlier had filed the petition. The instant petition was filed about three months ago. The children, while as per every day's case before this Court, are living With the respondent about 1(1/2) year prior to the same.
6. She had brought an application under Section 25 of the Guardian and Wards Act again the respondent before the Guardian Court at Lahore the custody of the minor children. She in the same had also brought the application under Section 12 of the Act supra in the afore mentioned petition sider Section 25 of the Act for the interim custody of the children to her. These stately are fixed before the concerned Court for 13th of the instant.
She, now all of a sudden after about 1'% year of leaving the respondent's house had filed the instant petition.
7. In these circumstances, it can't be said to be a case of illegal custody of the minor children with the respondent/father. In this regard reliance is placed upon the case of Naziha Ghazali v. The State and another (2001 SCM R 1782). The petition, therefore, is without any. force. The same is dismissed as such.
8. The nature of the matter demands that Guardian petitions may be disposed of expeditiously or at least the one under Section 12 of the Act supra. The learned Guardian Court concerned, therefore, is directed to dispose of her application under Section 12 of the Act within 15 days from the receipt of this order by it under intimation to the Deputy Registrar (Judl) of this Court. It shall also decide her application under Section 25 of the Act supra as expeditiously as possible.
9. It is, however, made clear here that any observation made above shall not influence the mind of the learned Guardian Court in any manner. The petitions brought by the petitioner shall be decided independently of their own merits.