Mst. Nusrat Parveen vs Abdul Ghafoor And 4 Other
This constitutional petition was filed by the mother seeking the recovery and custody of her minor children from the alleged improper custody of respondent No. 1 under Section 491 of the Code of Criminal Procedure 1898. The core legal question revolved around whether the mother was entitled to the preferential right of Hizanat for the custody of her minor children of tender age. The Lahore High Court held that the mother possesses the preferential right of Hizanat under Islamic Law and that technicalities must be subordinated to the welfare of the minors, noting that allegations of immoral conduct lacking proof do not disentitle the mother. The petition was accepted and custody was handed over to the mother, leaving parties at liberty to approach the Guardian Judge under Section 25 of the Guardians and Wards Act 1890.
- Whether the High Court can issue directions in the nature of habeas corpus under Section 491 of the Code of Criminal Procedure 1898 in matters pertaining to the custody of minors?
- Does a mother possess a preferential right of Hizanat for the custody of her minor children of tender age under Islamic Law?
- Can unsubstantiated allegations of immoral conduct deprive a mother of her preferential right to the custody of her minor children?
- Whether parties can approach the Guardian Judge for the custody of minors notwithstanding an order passed in a habeas corpus petition?
- Section 491, Code of Criminal Procedure 1898
- Section 25, Guardians and Wards Act 1890
ORDER
IQBAL HAMEED-UR-REHMAN, J. - Through the instant petition, the petitioner seeks the recovery of minor children namely Kiran, Iram, Amina, Faisal, Hina and Maryam Bibi sons of daughters of the petitioner to be in the alleged improper custody of respondent No. 1. The minor detenues have been produced by respondent No. 1.
2. Learned counsel for the petitioner submits that the law is very much clear on the point and has quoted Section 534 of the Muhammadan Law, wherein it is mentioned that a female could only by disentitled to the custody of her minor children if she remarries or goes and resides at a distant place or if she leads an immoral life or she neglects to take proper care of the children. It is further submitted that in the instant case none of the disentitlement propounded in Section 354 of the Muhammadan Law applies to the petitioner. Learned counsel for' the petitioner further submits that respondent No. 1 has re-married, therefore, he cannot look after the minors properly.
3. On the other hand, learned counsel for respondent No. 1 states that the petitioner ran away with her paramour and she remained with him for five months and after five months she has now filed this petition for the custody of minors,
4. Arguments heard record perused.
5. In the case of Musarrat Waris v. Muhammad Afsar Khan and 4 others (2006 M LD 231) the mother had filed a habeas corpus petition for recovery of the children who were in the custody of their father and he said petition of the mother was dismissed and the mother challenged that order before the High Court in Constitutional petition, wherein it was held that in matters pertaining to custody of minors of tender age, High Court is empowered to issue directions in the nature of habeas corpus under Section 491, Cr.P.C. If custody of minors was improperly disturbed. Mother under the Islamic Law was entitled to have the custody of her minor son who was below the age of seven years and daughters who had not attained puberty. Statements of the children in favour of their father were of no value for their custody with father and therefore, custody of minors was given to the mother with observations that "parties would be at liberty to approach the Guardian Judge for redressal of their grievance without being influenced by the order of the High Court." In the case of Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1), it was held that "Courts in the cases pertaining to the custody of a child were not supposed to go into the technicalities of law and they should decide the case keeping in view mainly the welfare of the child."
6. The contention of the learned counsel for the respondent No. 1 that the petitioner had run-away with her paramour is not borne out from the copy of application submitted by learned counsel for responden No. 1 before this Court, filed in the Court of learned Judicial Magistrate, Pattoki against the accused persons stating therein that she had been abducted by Azeem alias Jeema etc. Accused persons on pistol point; therefore; said application in face negates the contention of the learned counsel for respondent No. 1. Apart from the same, there is nothing to deprive the petitioner of her preferential right of Hizanat. According to the Muhammadan Law, the petitioner has neither re-married nor there is anything to establish that the petitioner is leading an immoral life; as such, under the law the petitioner is entitled for the custody of the minors, who are of very tender age. ''
7. In view of the above perspective, this petition is accepted. Petitioner having the preferential right of. Hizanat, being real mother of the minors is handed over the custody of the minor children.
Reliance is placed on the case of Mst. Razia Rehman v. Station House Officer and others (PLD 2006 S.C. 533) wherein it has been held that it is not denied that according to the Muslim Personal Law, the mother having the preferential right of Hizanat is entitled to the custody of minors. Respondent No. 1, if so advised,' may approach the learned Guardian Judge-for the custody of the minors under Section 25 of the Guardian and Wards Act. Disposed of.