This petition for leave to appeal was filed against a Lahore High Court order dismissing a petition under Section 491, Cr.P.C. for the recovery of three minor children from the custody of their paternal aunt. The petitioner, the biological mother, had voluntarily left the children with her deceased husband's relatives before seeking their recovery through habeas corpus proceedings. The core legal question was whether the High Court's jurisdiction under Section 491, Cr.P.C. could be invoked for child custody when the minors were not of tender age and had not been forcibly removed. The Supreme Court held that the High Court's jurisdiction in such matters is extraordinary and should be exercised sparingly, only in cases of real urgency involving very young children recently snatched from lawful custody. Since the children were aged 8 to 12 and were not illegally detained, and a Guardian Judge had already appointed a guardian, the petition was misconceived. The Court reaffirmed that final custody matters must be determined by the Guardian Judge rather than through summary criminal proceedings.
' ASIF SAEED KHAN KHOSA, J.---Through this petition the petitioner has sought leave to appeal against the order dated 1-2-2010 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No, 89-H of 2010.
2. After the death of her husband the petitioner had left the house of her husband leaving her three sons namely Saad Ali (aged about 12 years), Faryad Ali (aged about 10 years) and Rizwan Ali (aged about 8 years) in the care of some relatives of the petitioner's deceased husband. After some time the petitioner filed the above mentioned petition under section 491, Cr.P.C. Before the Lahore High Court, Lahore seeking recovery of the said children from the custody of respondent No,1 who is a sister of the petitioner's deceased husband but that petition was dismissed by a learned Judge-in- Chamber of the Lahore High Court, Lahore on the ground that admittedly the petitioner had left her children on her own and those children had not been removed from the petitioner's custody and, thus, it could not be said that those children were being illegally detained by respondent No, 1.
3. It has consistently been held by this Court in the cases of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCNIR 1891), Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852), Mst.
Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1) and Naziha Ghazali v. The State and another (2001 SCM R 1782) that the matter of custody of minor children can be brought before a High Court under section 491, Cr.P.C. Only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter and also that in such a case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge. In those cases this Court had repeatedly emphasized that in such matters the jurisdiction of a High Court under section 491, Cr.P.C. Is to be exercised, sparingly and such exercise may be undertaken only in exceptional and extraordinary cases of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minor children and regulating their interim custody. In the case in hand the petitioner's children were neither of very tender ages nor had they been snatched away from the petitioner and, thus, the petitioner's petition filed before the Lahore High Court, Lahore under section 491, Cr.P.C. Was misconceived. The interim order passed by this Court in connection with the present petition on 20-12-2010 shows that on 7-4-2010 the learned Guardian Judge, Sialkot has already appointed the paternal grandmother of the minors as the guardian of their persons and properties. We have been informed that the said decision of the learned Guardian Judge has not so far been assailed by the petitioner before any higher court. In this view of the matter we have failed to find any occasion for interference in the matter. This petition is, therefore, dismissed and leave to appeal is refused.