Mst. NUSRAT PARVEEN vs ABDUL GHAFOOR and 4 others
This petition was filed by the petitioner-mother seeking the recovery of her minor children, who were allegedly in the improper custody of the respondent-father. The core legal question concerned whether the mother, as the natural guardian, was entitled to the custody of the minors under the principles of Hizanat in Islamic Law, given the respondent's allegations regarding the mother's character. The Court held that the mother possessed the preferential right of Hizanat, as there was no evidence of remarriage or immoral conduct that would legally disentitle her. The Court rejected the respondent's unsubstantiated claims of the mother's misconduct, noting that prior allegations of abduction against the mother were inconsistent with the respondent's current arguments. Emphasizing that the welfare of the child is the paramount consideration in custody matters, the Court directed the handover of the minors to the mother. The judgment affirmed that while the High Court may exercise jurisdiction in habeas corpus matters regarding minors, parties remain at liberty to approach the Guardian Judge for a final determination on custody under the relevant statutory framework.
- Is the mother entitled to the custody of minor children under the principle of Hizanat in the absence of evidence of remarriage or immoral conduct?
- Can the High Court exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to recover minor children from improper custody?
- Does an order of the High Court in a habeas corpus petition regarding child custody preclude parties from seeking a final determination from a Guardian Judge?
- Section 491, Code of Criminal Procedure 1898
- Section 25, Guardian 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 and daughters of the petitioner to be in the alleged improper custody of respondent No, 1 . the minor determines 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 disentitlements 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 persued.
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 respondent 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 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 Rahman v. Station House Officer and others (PLD 2006 SC 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.