Mst. SYEDAN BIBI vs DISTRICT AND SESSIONS JUDGE, KHANEWAL and 2 others
This criminal revision was filed against the order of the Sessions Judge, Khanewal, which dismissed the petitioner's habeas corpus petition for the recovery of her minor children from their father (respondent No. 3) and directed her to approach the Guardian Court. The petitioner contended that because the father had contracted a second marriage, the welfare of the minors was compromised and their custody with him was improper. The High Court, while acknowledging that the father had entered into a second marriage and that the welfare of the minors might not lie with him, held that the custody of minors with their real father cannot be deemed illegal or improper. Consequently, the High Court ruled that the Sessions Judge had rightly exercised his power under Section 491 of the Code of Criminal Procedure 1898. The revision petition was dismissed, and the petitioner was directed to seek custody of the minors before the Guardian Court under the Guardians and Wards Act 1890.
- Whether the custody of minor children with their real father can be considered illegal or improper for the purposes of a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898?
- Does the fact that a father has contracted a second marriage make his custody of his minor children per se illegal under Section 491 of the Code of Criminal Procedure 1898?
- What is the appropriate legal forum for resolving custody disputes and determining the welfare of minors when their custody with the father is not illegal?
- Section 491, Code of Criminal Procedure 1898
- Section 12, Guardians and Wards Act 1890
- Section 25, Guardians and Wards Act 1890
' 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. Shazia 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 (Criminal Miscellaneous No,1161/H of 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 cf 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 abovesaid 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 v. Muhammad Akram 1991 PCr.LJ 878 and Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852.
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 propostion, reliance is placed upon Mst.
Musarrat Parveen v. Muhammad Akram 1999 PCr.LJ 878.
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.