Mst. SYEDAN BIBI vs DISTRICT & SESSIONS JUDGE, KHANEWAL and 2 others
This criminal revision petition challenged an order passed by the District and Sessions Judge, Khanewal, which dismissed the petitioner's habeas corpus petition seeking the recovery of her minor children from their father (Respondent No. 3). The petitioner argued that the father's second marriage necessitated the court's intervention regarding the minors' custody. The core legal question was whether a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898 is the appropriate remedy for a mother to recover custody of minors from their biological father, despite the father's remarriage. The Court held that while the father's remarriage is a relevant factor for determining the welfare of the minors, the custody of minors with their biological father is not illegal. Consequently, the Court affirmed that the Sessions Judge correctly exercised discretion in dismissing the habeas corpus petition. The key principle laid down is that habeas corpus proceedings are not the proper forum for determining custody disputes between parents, and the aggrieved party must instead approach the competent Guardian Court for relief.
- Is a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898 the appropriate remedy for a mother to recover custody of minors from their biological father?
- Does the remarriage of a father automatically render his custody of his minor children illegal for the purposes of a habeas corpus petition?
- Section 25, Guardians and Wards Act 1890
- Section 12, Guardians and Wards Act 1890
- Section 491, Code of Criminal Procedure 1898
This criminal revision is directed against the order dated 14.2.2005, passed by the learned Sessions Judge, Khanewal, whereby he dismissed the petition of the petitioner and directed her to approach the guardian Court for redressal of her grievance.
2. Brief facts leading to this revision petition are that the petitioner and Respondent No, 3 entered into marital bond about 17/18 years ago and out of this wedlock, they were blessed with one son namely Mustafa alias Luqman and three daughters, namely, Nazia- aged 6/7 years, Asia Bibi already married and Mst. Shazid Bibi aged about 8/9 years, who is under the custody of the petitioner. Due to apprehension that Respondent No, 3 may not snatch her daughter, the petitioner approached the learned Guardians Judge by filing petitions under Sections 25 and 12 of the Guardians and Wards Act, 1890 which are pending adjudication. On 7.2.2005 the learned Judge Family Court Kabirwala ordered Respondent No, 3 not to deprive the petitioner of the custody of minor Mst. Shazia. On 22.7.2000, Respondent No, 3 snatched three minor children from the petitioner and the petitioner filed an application (Cr. Misc. No, 1161-H/2000) for their recovery, which was dismissed vide order dated 15.8.2000 passed by this Court and custody of the minors was ordered to be delivered back to Respondent No,
3. In December, 2000 the parties were arrived at a compromise and Mst. Shazia and Mst. Nazia daughters and Mustafa alias Luqman (son) joined the petitioner. Thereafter three minors were again snatched by Respondent No,
3. Regarding recovery of minor Mst. Shazia, the petitioner moved a petition before the learned Guardian Judge and for the recovery of Mustafa alias Luqman and Mst. Nazia the petitioner moved a habeas petition before Respondent No, 1 (District and Sessions Judge Khanewal) who dismissed the petition vide order dated 14.2.2005.
3. Learned counsel for the petitioner has contended that as Respondent No, 3 has entered into second marriage, keeping the minors with him is an aspect which needs special considerations and indulgence of this Court as in the peculiar circumstances of the case the above said fact speaks qua improper nature of the impugned order.
4. On the other hand, learned 'counsel for Respondent No, 3 has supported the impugned order and in this behalf reliance is placed upon Mst. Musarrat Parveen vs. Muhammad Akram (NLR 1991 CLJ 190) and Nisar Muhammad and another vs. Sultan Zari (PLJ 1997 SC 1752).
5. I have heard learned counsel for the parties and perused the record.
6. It is an admitted fact that Respondent No, 3 has contracted second marriage and, therefore, welfare of the minors does not lie with him. But at the same time it can safely be held that custody of minors with their real father is not illegal and the learned Sessions Judge under Section 491 Cr.P.C. has rightly exercised his power. In support of this proposition, reliance is placed upon Mst.
Musarrat Parveen vs. Muhammad Akram (NLR 1991 CLJ 190).
7. Resultantly, I find no substance in this petition which is dismissed accordingly. However, the petitioner may approach the learned Guardian Judge for the custody of the minors, if so.advised.