Mst. AYESHA SIDDIQUA vs STATION HOUSE OFFICER and 2 otherss
This petition was filed under Section 491 of the Code of Criminal Procedure 1898, seeking the recovery of two minor children from the custody of their paternal uncle. The petitioner, the mother of the minors, claimed entitlement to custody following her divorce from the minors' father, who resides abroad. The respondents, represented by the paternal grandmother, alleged that the petitioner was disqualified from custody due to her remarriage and alleged immoral conduct. Upon producing the minors in court, the children expressed a clear preference to remain with their grandmother, with whom they had resided for several years. The Court observed that the children were well-adjusted with their grandmother. Furthermore, the petitioner relied on a previous order from a Guardian Judge regarding custody but failed to demonstrate how she was deprived of that custody or why she sought relief under Section 491 rather than executing the existing order. Consequently, the Court declined to exercise its discretionary jurisdiction under Section 491, Cr.P.C., and dismissed the petition, directing the petitioner to approach the appropriate Guardian Judge for the execution of the prior custody order.
- Whether the High Court should exercise its jurisdiction under Section 491 of the Code of Criminal Procedure 1898 when a prior custody order from a Guardian Judge already exists?
- Can a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898 be used as a substitute for the execution of a custody order passed by a Guardian Judge?
- Is the preference of minor children a relevant factor for the Court when deciding whether to invoke its jurisdiction under Section 491 of the Code of Criminal Procedure 1898?
- Section 491, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD 'MUZAMMAL KHAN, J.---Instant petition under section 491, Cr.P.C. Prayed for recovery of Aneesa Jannat of the age of 6 years and Fahim Sikandar of the age of 4/5 years, the minor children of the petitioner, from the custody of respondent No.2, their paternal uncle. It was claimed that petitioner, who is mother of the minors, having already been divorced by father of the minors, is entitled to their custody, because father is living abroad in connection with his employment there.
2. On notice by this Court, respondent No.2 along with his mother, who is paternal grandmother of the minors, appeared and produced both the minor children before this Court. According to grandmother of the minors, petitioner was leading immoral life, hence was divorced by her son and thereafter she entered into second tie of marriage with one Muhammad Amir, thus she is disqualified to have custody of the minors, who are living with her for the last about 3/4 years and are attached with her. Minors who appear to be sensible, on Court's query, opted to live with their grandmother, thus without going into allegations against the petitioner, I refrain to invoke my jurisdiction under section 491, Cr.P.C. Because the children appear to be much familiar to grandmother as compared to the petitioner.
3. Petitioner has also placed on record copy of the order, dated 1-7-2003 giving custody of the minors to her. She could not satisfy as to how and under what process of law; she got the custody of the minors from paternal relations, of which she now claims to have been deprived. Without going into the allegations levelled by previous mother-in-law of the petitioner, I refrain to invoke my jurisdiction undersection 491, Cr.P.C. So that petitioner may approach the Guardian Judge concerned for execution of his order, dated 1-7-2003. This petition, for the reasons noted above, is dismissed.