Razia Bibi vs S.H.O. etc.
This is a second petition under Section 491 of the Code of Criminal Procedure 1898 filed by Mst. Razia Bibi seeking the custody of her minor children from her husband, Abdul Hameed. In a previous habeas corpus application, the custody of certain minor children was granted to the petitioner mother, while others remained with the father. The petitioner alleged that the respondent father unlawfully took away the children who were in her custody pursuant to the court's earlier order. During the proceedings, the respondent produced three of the minors in court and subsequently left without returning. The core legal question involved the enforcement of prior custody orders and the habeas corpus jurisdiction of the court regarding the custody of minors. The court held that the custody of the minors Muhammad Naeem, Sana, and Anam should be restored to the petitioner mother, while granting her liberty to seek appropriate legal remedies regarding the remaining child. The key principle laid down is that the court can restore the custody of minors to the parent entitled thereto under previous orders in habeas corpus proceedings when the other party violates court directions.
- Can a second petition under Section 491 of the Code of Criminal Procedure 1898 be maintained for the custody of minor children?
- Whether the court can restore the custody of minors to a parent when the opposing party violates a previous court order regarding custody?
- Section 491, Code of Criminal Procedure 1898
ORDER
M.A. ZAFAR, J.--- This is the second petition under Section 491, Cr.P.C. On behalf of Mst. Razia Bibi for getting the custody of her minor children from her husband Abdul Hameed. In earlier application Crl. Misc. No. 104-H-08 vide order dated 13.2.2008, the petitioner's son Muhammad Jamil was allowed to live with his father but the custody of Muhammad Tanveer and Muhammad Naeem aged 10 and 8 years respectively as well as two daughters namely Sanam @ Sana and Anam Bibi aged about 4 years and 2 years respectively was given to the petitioner by this Court. According to the allegations suit filed by the petitioner seeking dissolution of marriage had already been decreed by the learned Judge Family Court, Lahore. As per averments of the petition, the respondent took away four children, who were given to her by the this Court and they are with him.
Needless to mention here that the eldest child Muhammad Shakeel aged 14 years and Muhammad Jamil aged 12 years are already with the respondent No. 2.
2. In pursuance of the order dated 6.7.2009 passed by this Court, the respondent No. 2 had produced Muhammad Naeem aged 8 years, Sanam alias Sana aged 4 years and Anam Bibi aged two years in the Court and the respondent No. 2, after leaving children with the petitioner, left the Court on the pretext of bringing his counsel and despite repeated calls, he has not turned up. Most probably due to the fear that he may not be' taken into custody on account of violating the order passed by this Court in earlier habeas corpus petition. Keeping in view all the facts and circumstances of the case, the custody of the minors Muhammad Naeem, Sana and Anam is once again restored to the petitioner, who is their mother. Regarding the 4th child namely Muhammad Tanveer, who was earlier in her custody, she may take appropriate action in accordance with law for its restoration.