Mst. SAEEDA vs ISHFAQUE JAVAID MUKHI and 3 otherss
This matter involves a habeas corpus petition filed under Section 491 of the Code of Criminal Procedure 1898 by a Japanese national mother against her former Pakistani husband and his family members for the recovery and custody of her minor daughter. The core legal questions relate to the maintainability of a habeas corpus petition for child custody, the welfare of the minor, and the implications of the minor's expired visa while custody proceedings are pending in Japan. The Lahore High Court held that the petition under Section 491, Cr.P.C. is maintainable, and in evaluating the welfare of the child—noting the mother's right to hizanat under personal law, the father's absence from proceedings, the poor quality of local schooling, and the expiration of the minor's legal stay in Pakistan—decided to allow the petition and hand over the custody of the minor unconditionally to the mother. The key principle laid down is that the High Court, under its constitutional and statutory habeas corpus jurisdiction, can examine the welfare of a minor and restore custody to the entitled parent when circumstances show the child's well-being is compromised.
- Whether a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898 is maintainable for the custody of a minor?
- Can the High Court examine the question of the welfare of a minor while exercising jurisdiction under Section 491 of the Code of Criminal Procedure 1898?
- Does the mother retain the right to hizanat of a young female child under personal law in habeas corpus proceedings?
- Section 491, Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.---Mst. Saeeda, previously known as Morata Youshiko, who is a Japanese national, has brought this habeas corpus petition under section 491, Cr.P.C. Against her previous husband Ishfaque Javaid Mukhi (respondent No.2 Mst. Tehseen Akhtar (respondent NO.2second wife of Ishfaque Javaid Mukhi, Mushtaq Ahmad Mukhi and Mst. Ghafooran (respondents Nos.3 and 4, respectively), who are parents of Ishfaque Javaid Mukhi, for the recovery of her minor daughter Muqaddas, aged about five years.
2. The case of the petitioner was that she has solemnized Nikah with Ishfaque. Javaid Mukhi (respondent No.1) at Japan on 9-7-1998 according to Muslim rites after embracing Islam; that from the said wedlock, a girl was born on 10-1-2000, for whose custody this petition has been moved; that Ishfaque Javaid Mukhi (respondent No.1) had given himself out as a bachelor at the time of marriage and had also sworn affidavits to the said effect; that Ishfaque Javaid Mukhi (respondent No.1) had taken the petitioner and the minor to Pakistan, where they had started living at Gujranwala, however, (hiring their stay at Gujranwala, the petitioner had been subjected to extreme torture and oppression by her husband, who had constantly been demanding money from her; that on account of cruelty of her husband, she had no other option but to leave for Japan and she was not allowed to take her minor daughter with her; that thereafter Ishfaque Javaid Mukhi (respondent No. l) came back to Japan without the minor and stated that since he had to leave the country in a hurry, therefore, he had left the minor back home; that during the period of separation from the minor, the petitioner had sent a cash of Rs.One million, which has in fact been extracted from her on the promise that the minor would be sent back to Japan; that in January, 2002, Ishfaque Javaid Mukhi (respondent No.1) stated that he was going back to Pakistan to fetch the minor, but he came back alone and put forward a demand that he would the needful if the petitioner arranged for a visa for his second wife, namely, Tehseen Akhtar (respondent No.2); that the petitioner was exploited to the extent that he had no other option but to sign the divorce papers and also the papers for giving parental authority to her husband; that thereafter Ishfaque Javaid Mukhi (respondent No.1) went back to Pakistan, solemnized Nikah with his wife Mst. Tehseen Akhtar (respondent No.2), so as to give an impression that he had contracted second marriage after divorcing the petitioner that on return to Japan, Ishfaque Javaid Mukhi (respondent No.1) told the petitioner that divorce proceedings were only an eyewash and that he was still the husband of the petitioner and thereafter started living with her husband; that in October, 2004, Ishfaque Javaid Mukhi (respondent No.1) vanished from his house at Japan and thereafter his whereabouts were not known to her; that when confronted with this desperate situation fearing the safety and security of her minor daughter, she reached Pakistan and contacted the wife and parents of Ishfaque Javaid Mukhi (respondent No.1) to see her minor daughter, but they steadfastly refused her request. She finally stated that since her minor daughter was being kept in a miserable condition by the parents of her ex-husband, where a step-mother of the child is also living, therefore her custody may be handed over to her.
3. I had deputed a Bailiff of this Court to recover the minor. The Bailiff recovered the minor child from the residence of her step-mother Mst. Tehseen Akhtar (respondent No.2), where the grandparents of the minor are also residing. The Bailiff was informed by the paternal grandmother of the minor that she had been left with them by the petitioner herself and further that the minor's father, Ishfaque Javaid Mukhi (respondent No.1) was in Japan. The minor was produced in the Court on 8-6-2005, on which date she was provisionally handed over to her mother, the petitioner, who was directed to produce her in the Court on 13-6-2005. On the said date, Mr. Ahmad Awais, the learned counsel put in appearance' on behalf of the respondents and the case was adjourned to 15-6-2005.
4. The learned counsel for the petitioner reiterated the stance taken in the petition, contents whereof have been noted hereinabove. He added that admittedly the case relating to the custody of the minor is pending at Japan and that since the minor is a Japanese national, therefore, it is for the said Court to adjudicate the matter to decide about her custody. In this connection, he submitted that the visa granted to the minor by the Japanese Government has since expired on May 12, 2005 and as such the presence of the minor in Pakistan has become illegal. In this regard, he referred to photostat of the passport and the Visa stamp, which has not been controverted by the learned counsel for the respondents. The learned counsel further added that apart from that the petitioner is entitled to the Hizanat of the child under the Personal Law and that the manner in which the minor has been abandoned by her father clearly disentitles him to her custody; that the grandparents and the step-mother of the minor have miserably failed to make out a case for custody while the father of the minor is living abroad; that the minor is being kept in a deplorable condition and is being made to live in a godforsaken village where even the basic necessities of life are lacking; that she is not being sent to a proper school and that this Court in exercise of its jurisdiction under section 491, Cr.P.C. Is fully competent to go into the question of welfare of the minor. It has been finally argued that continuation of the minor's custody with the respondents will pose serious threats to her health and wellbeing.
5. On the other hand, the learned counsel for the respondents strenuously contested the petition and submitted that in the given facts and circumstances of the case, petition under section 491, Cr.P.C. Was not maintainable and that the petitioner could have recourse to a Guardian Court for custody of the minor.
6. I have considered the lengthy arguments advanced by the learned counsel for the parties and have also gone through the documents available on the file. The fact that the minor is a Japanese national and that her visa has already expired is an admitted position. The school certificate produced by the respondents, where the minor is being sent reads:-- "Glasgow Pablic School System ' English medium Nokhar, Distt. Gujranwala"
' I would not like to comment on the standard of the school, however, I would just like to point out that in the certificate Public has been spelled as "Pablic", academic has been spelled as "acadamic", and "career" has been written as "Carrier" (underlining is mine) and it has been stated that "She is proved a very regular and punctual student." No further comment needs to be made about the quality of education, which this school is imparting to its students. Since the minor is only four/five years of age and being a girl her Hizanat belongs to the mother, The father has not even joined the proceedings and has not even bothered to contest the matter. This Court is fully competent while exercising its jurisdiction under section 491, Cr.P.C. To go into question of welfare of the minor. Even otherwise, the minor's further stay in Pakistan is not legal. Admittedly the case for her custody is pending at Japan, where the father is also stationed.
7. Keeping in view the facts and circumstances of the case. I allow this petition and handed over the custody of the minor to the mother unconditionally. If the respondents are interested in her custody, they may, if so advised, filed proceedings before the Guardian Court.