SAIMA ASLAM vs ASIF TUFAIL
The petitioner filed an application under Section 491 of the Code of Criminal Procedure 1898 for the recovery of a minor child from the alleged illegal custody of the respondent. The Sessions Judge initially ordered the recovery and production of the minor, but subsequently dismissed the application upon observing that the minor was uncomfortable with the mother, directing the petitioner to approach the Guardian Court. Upon review, the High Court noted that the minor was a suckling baby and that the welfare of the minor demanded custody be given to the mother, who had not remarried, relying on established case law principles. Consequently, the High Court allowed the petition, handed over the custody of the minor to the mother, and observed that the respondent could approach the Guardian Court for regular determination of custody keeping the minor's welfare in view.
- Can custody of a suckling minor be granted to the mother through a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898?
- Does the comfort or attachment of a minor child dictate the dismissal of a habeas corpus petition for custody when welfare points to the mother?
- Section 491, Code of Criminal Procedure 1898
ORDER
KHALIL AHMAD, J.---Petitioner filed an application under section 491, Cr.P.C. For the recovery of minor Umaiza aged about 1-1/2 years from the illegal custody of respondent No, 1 . The learned Sessions Judge, Faisalabad on 14-5-2008 directed the S.H.O. Concerned to conduct a raid, recover and produce the minor in Court on 17-5-2008. On 17-5-2008, the minor was produced in the Court and she was given in the hands of the petitioner.
' The Court observed that the minor was not feeling comfortable with her mother and as such dismissed her application and directed the petitioner to approach the Guardian Court, the forum of ultimate jurisdiction, related to such matters. Learned counsel for the petitioner has relied upon PLD 2004 SC 1 to argue that the custody of a girl emotionally attached to the father can be granted to the mother.
2. Today the minor has been produced in Court in the company of paternal grandmother and father. The learned counsel for the petitioner states that the minor is for the last one and half years with the father and is being properly looked after.
3. It is on record that she is suck baby and interest and welfare of the mi demands that custody be given to mother who has not married till date compared to the father. Keeping in view dictum in the case of Ahmed Sami and 2 others v. Saadiq Ahmed and another 1996 SCM R 268. This writ petition is allowed and the custody of the minor is handed over to the mother. The respondent can approach the Guardian Court for custody who shall decide the same keeping in view the welfare of the minor.