Mst. NAHEED AKHTAR vs STATION HOUSE OFFICER, P.S.A. DIVISION, SHEIKHUPURA and another
This petition was filed under Section 491 of the Code of Criminal Procedure 1898, seeking the recovery of two minor children, a daughter aged seven and a son aged five months, from the alleged illegal custody of their father, the second respondent. The petitioner, the mother of the minors, contended that the father had forcibly taken the children, rendering his custody illegal and endangering their welfare. The court noted that the children were produced before it in compliance with a prior order. Upon hearing the petitioner and observing that the respondent failed to appear despite notice, the court addressed the core legal question of the mother's right to custody. The court held that the mother possesses the primary right of Hizanat (custody) over the minor children, famously observing that the mother's lap is God's own cradle. Consequently, the court ordered the custody of the minors to be handed over to the petitioner. It clarified that this order does not preclude the father from seeking custody through appropriate proceedings under the Guardian and Wards Act 1890, which the Guardian Court would determine based on the welfare of the minors.
- Does the mother have the primary right of Hizanat over minor children in a habeas corpus petition?
- Can a father seek custody of minors after a habeas corpus petition has been decided in favor of the mother?
- Is a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898 an appropriate remedy for the recovery of minor children from a parent?
- Section 491, Code of Criminal Procedure 1898
- Guardian and Wards Act 1890
ORDER
This is petition under Section 491, Cr.P.C. has been filed for recovery of minor children of the petitioner namely Kaynait (daughter aged about 7 years) and Rehan (son aged about 5M years), from the alleged illegal custody of Respondent No, 2 (their father).
2. In compliance of this Court's order dated 20.04.2012 Respondent No, 1 has produced the above mentioned detenus before this Court.
3. It is contended by the learned counsel for the petitioner that Respondent No, 2 forcibly snatched the above mentioned detenus from the lawful custody of the petitioner and custody of detenus with Respondent No, 2 is illegal and unlawful; that the life and health of the detenus is in danger in the custody of Respondent No, 2.
4. No one appeared on behalf of Respondent No,
2. Safdar, SI present in Court states that Respondent No, 2 had the information about the fixation of this case as the detenus were recovered from his house.
5. Heard.
6. The detenus namely Kaynait (daughter aged about 7 years) and Rehan (son aged about 5 years) are minor children of the petitioner. The first right of Hizanat of the detenus lies with the petitioner, being mother of the said detenus. It is settled law that mother's lap is God's own cradle. hi the. view of above discussion, custody of the detenus is handed over to the petitioner. Any how, Respondent No, 2 may file a petition under the Guardian and Wards Act, 1890 for the custody of minors, before the concerned Guardian Court, if he so desires. The learned Guardian Judge will decide the question of custody of minors, keeping in view the welfare of minors and relevant law on the subject, without being influenced by any observation made in this order, provided a petition is filed in this respect before him. With the above observations this petition stands disposed of.