Mst. MISBAH SADDIQUE vs S.H.O. and 3 others
This matter concerns a habeas corpus petition filed under Section 491 of the Code of Criminal Procedure 1898, seeking the custody of a minor female child. The petitioner, the mother, had lost her right of Hizanat (custody) due to contracting a second marriage with a person not within the prohibited degree of the minor. While the petitioner argued that the right of custody should automatically transfer to the maternal grandmother, the respondents contended that the minor was currently with the paternal grandmother. The Court held that while the legal principle regarding the transfer of custody rights upon the mother's remarriage is established, the determination of custody between competing claimants, such as the maternal and paternal grandmothers, cannot be resolved in summary proceedings under Section 491 of the Code of Criminal Procedure 1898. The Court ruled that such disputes require an inquiry into the welfare of the minor, which is the paramount consideration, and must be adjudicated by a competent Guardian Judge. Consequently, the petition was disposed of, leaving the parties to seek remedy before the appropriate forum.
- Can a dispute regarding the custody of a minor between two grandmothers be resolved in summary proceedings under Section 491 of the Code of Criminal Procedure 1898?
- Is the welfare of the minor the supreme consideration in determining custody disputes?
- Does the right of Hizanat automatically transfer to the maternal grandmother when the mother loses her right due to remarriage with a person outside the prohibited degree?
- Section 491, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD JEHANGIR ARSHAD, J.---Pursuant to this . Court's order, dated 14-7-2006 Muhammad Akram S.-I.Has produced the respondents along with Areeba Arshad, minor daughter of the petitioner.
2. It is submitted by learned counsel for the respondents that the petitioner has contracted second marriage with a person not falling within a prohibited degree, therefore, she has lost her right of Hizanat in terms of para. 354 of Mohammedan Law by D.F. Mulla and the female minor is now in the custody of her paternal grandmother. Petitioner's second husband is also present in Court and admits that he has no relation A with the minor within the prohibited degree.
3. At this stage, it has been argued by learned counsel for the petitioner that maternal grandmother of the minor is present in Court and in the event of petitioner having lost her right of Hizanat by contracting marriage with a person outside prohibited degree the right of.Hizanat of female child automatically transfers to the maternal grandmother in termsof para 353 of the Mohammedan Law by Mulla and thus she is entitled to get custody of the minor.
4. So far as legal proposition as canvassed by learned counsel for the petitioner that when mother loses her right of Hizanat of a female baby, the said right transfer to the maternal grandmother, is concerned, there is no cavil to the same. However, in such-like cases the question of preference between maternal grandmother and paternal grandmother with regard to the custody of the female minor cannot be determined in summary proceedings like the present one under section 491, Cr.P.C., as same requires evidence with regard to the welfare of the minor which is the supreme consideration for deciding such-like matters as held by the Hon'ble Supreme Court of Pakistan in "Mst. Firdous Iqbal v. Shifaat Ali and others" (2000 SCM R 838) and "Sardar Hussain and others v. Mst.
Parveen Umer and others" (PLD 2004 SC 357). This petition is disposed of accordingly and the question regarding determination of entitlement to have custody of the female minor between two grandmothers is left for determination by the learned Guardian Judge, in case either of the party opts to approach the said Court.