Mst. QAISRA BIBI vs THE STATE and another
This criminal revision petition challenged an order by the Sessions Judge, Islamabad, which dismissed a habeas corpus petition filed by a mother seeking the custody of her two minor children. The petitioner alleged that her husband had ousted her from the matrimonial home and, through a Jirga proceeding, forcibly retained custody of the children. The Sessions Judge had directed the petitioner to approach the Guardian Judge instead. The High Court, upon review, noted that the children were of tender age (2 and 9 years) and required the mother's care. It further observed that the father was employed full-time, leaving the children without adequate supervision during the day. The Court held that the Jirga's decision regarding custody was void ab initio and that the Sessions Judge erred in dismissing the habeas petition. Emphasizing that the welfare of the minors is the paramount consideration in custody disputes, the Court allowed the revision, set aside the impugned order, and directed the immediate restoration of the minors' custody to the mother.
- Whether a habeas corpus petition under Section 491, Code of Criminal Procedure 1898 is maintainable for the recovery of minor children from the custody of a father?
- Does the welfare of minors of tender age take precedence over a private agreement or Jirga decision regarding custody?
- Is a Sessions Judge justified in dismissing a habeas corpus petition for minor custody by directing the petitioner to approach the Guardian Judge?
- Section 491, Code of Criminal Procedure 1898
- Guardian and Wards Act 1890
ORDER
CH. MUHAMMAD TARIQ, J.---This criminal revision has been directed against the impugned order dated 21-4-2010 passed by the learned Sessions Judge Islamabad who directed the petitioner to approach the Guardian Judge for the custody of the minors under the Guardian and Wards Act.
2. Brief facts of the case are that the petitioner was married with respondent No,2 on 28-5-2007 in accordance with Muslim Rites. Out of this wedlock, two sons were born. During the subsistence of the marriage, a number of disputes cropped up between the parties and resultantly on 4-4-2010, respondent No,2 ousted the petitioner from his house along with the minors after giving her severe beating. The matter was referred to Jirga. As a result of proceedings before the jirga, respondent No,2 paid Rs,100,000 to the petitioner along with divorce deed and jirga without any justification and against the wishes of the petitioner, handed over the custody of the minors to respondent No,2 (father).
3. Aggrieved of the act of the jirga as well as that of her husband, the petitioner filed a habeas petition under section 491, Cr.P.C. for production of the minors before the learned Sessions Judge, Islamabad who dismissed the same on 21-4-2010 with the observation that the petitioner, if so desires, may approach the learned Guardian Judge for the custody of the minors. Hence this criminal revision.
4. Learned counsel for the petitioner contends that the impugned order has been passed in a hasty manner which is against the welfare of the minors who are of tender age, therefore, the revision petition be allowed, the impugned order passed by the learned Sessions Judge Islamabad be set aside and the custody of the minors be handed over to the petitioner.
5. Conversely, the learned counsel for respondent No,2 has opposed the criminal revision petition and has prayed for dismissal of the same with costs.
6. Arguments heard. Record perused.
7. Admittedly the minors namely Aalian and Faizan are aged about 2 years and 9 months respectively who deserve the lap of their mother due to their tender age. The decision of jirga whereby the minors were handed over to respondent No, 2 is without any justification. Similarly, the impugned order passed by the learned Sessions Judge, Islamabad is without any lawful authority.
In reply to a query, learned counsel for respondent No,2 has admitted that respondent No,2 is working in a private company where he goes early in the morning and returns back to his home in the evening hours, so during the whole day, there is none to look after the minors. Admittedly, on 14-12-2009, respondent No,2 has pronounced divorce upon the petitioner and at present, there is no relation of husband and wife between the petitioner and respondent No,2. Moreover, the case of custody of minors is not just a dispute between the parties but the paramount consideration in such cases is always given to the welfare of the minors. In this case, the welfare of the minors lies with the petitioner who is their real mother. So far as the agreement' whereby the minors were handed over to respondent No,2 is concerned, it is void ab initio.
8. As a result of above discussion, this criminal revision is allowed, the order dated 21-4-2010 passed by the learned Sessions Judge Islamabad is set aside and respondent No,2 is directed to hand over the custody of both the minors to the petitioner forthwith. No order as to costs.