Mst. ZAHIDA SHER vs S.H.O., POLICE STATION NEW MULTAN and another
This matter arises from a petition filed under Section 491 of the Code of Criminal Procedure 1898 by the petitioner seeking the recovery of minor children forcibly removed from her legal custody by respondent No. 2. The core legal question concerned the scope and remedy available under habeas corpus jurisdiction regarding the custody of minors versus the jurisdiction of the family forums. The Lahore High Court held that the proper forum to determine the question of custody of minors is the Guardian Court established under the Guardians and Wards Act 1890, and that proceedings under Section 491 of the Code of Criminal Procedure 1898 are not meant to preempt or substitute the jurisdiction of the Guardian Judge, being merely tentative in nature as a stopgap arrangement. The Court ordered the minors to be handed over to the petitioner, while granting liberty to respondent No. 2 to approach the Guardian Judge for custody under the Guardians and Wards Act 1890.
- Whether Section 491 of the Code of Criminal Procedure 1898 can preempt the jurisdiction of the Guardian Court?
- What is the nature of an order passed under Section 491 of the Code of Criminal Procedure 1898 regarding the custody of minors?
- Which is the proper forum to determine the question of custody of minors?
- Section 491, Code of Criminal Procedure 1898
- Guardians and Wards Act 1890
ORDER
FAZAL-E-MIRAN CHAUHAN, J.-The minors namely Iqra Rubab and Saqlain Abbas, who were in the legal custody of the petitioner, were removed by respondent No,2 forcibly. The petitioner moved petition under section 491, Cr.P.C. Before the Sessions Judge, Multan on 4-1-2006 with the prayer to recover the minors from respondent No,2 and handed over to her.
2. Vide order dated 14-2-2006, respondent No,2 was directed to produce the minors on 20-2-2006.
On 20-2-2006, S.H.O. Stated that respondent No,2 was not traced out and sought time to recover the minors. The case was adjourned to 23-2-2006 and on the said date, respondent No,2 appeared but the minors were not brought by him. He was again directed to produce the minors for today i.e,24-2-2006.
3. Today, die minors have been produced by respondent No,
2. It is admitted by learned counsel for respondent No,2 that the minors were taken by the respondent from the school as they are not properly looked after by the petitioner and it was alone in the welfare of the minors. Further contends that the minors may be handed over to the petitioner but respondent No,2 be allowed to approach the Guardian Judge for the custody of the minors.
4. Admittedly, the proper forum to determine the question of custody of the minors is the Guardian Court, established under Guardians and Wards Act, 1890. Section 491, Cr.P.C. Is not meant to preempt the jurisdiction of Guardian Court or in any manner to substitute the proceedings to be conducted by the Guardian Judge. The order under section 491, Cr.P.C. Is tentative in nature as a stop gape arrangement subject to final determination by the Guardian Judge.
5. In this view of the matter, the minors are handed over to the petitioner. Respondent No,2 can approach the Guardian Judge for redressal of his grievance under Guardians and Wards Act, 1890.
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