This matter concerns an application filed under Section 491 of the Code of Criminal Procedure (Cr.P.C.) by a mother seeking the custody of her thirteen-year-old son, currently residing with his father. The core legal question was whether a habeas corpus petition under Section 491, Cr.P.C. is the appropriate remedy for a custody dispute involving a minor who has passed the age of Hizanat, where no illegal or improper detention is established. The Sindh High Court held that the application was not maintainable. The Court reasoned that the scope of Section 491, Cr.P.C. is strictly limited to cases of illegal or improper detention, which was not applicable here as the father's custody of a thirteen-year-old child could not be termed illegal. The Court affirmed that the proper forum for determining child custody and the welfare of the minor is the Guardian and Wards Court. Consequently, the application was dismissed, with the Court directing that any future application for interim custody filed under the Guardians and Wards Act should be decided expeditiously, prioritizing the welfare of the child.
1. ' MUHAMMAD SHAFI SIDDIQUI J.---This application has been filed under section 491, Cr.P.C. By the applicant, who is mother of alleged detainee Usama son of Nawabuddin Malik. By an order dated 10-8-2012, this Court observed that:- "The alleged detenue is the son of the applicant who is the mother and the respondent No,1 who is the father. The admitted position is that the alleged detenu is with the father. The age of the detenu is stated to be thirteen yeaRs, Since the detenue is a male child, the period of Hizanat is over, prima facie the applicant, if she wants to have the custody of the child has perfectly good remedy available under the Guardians and Wards Act. Prima facie therefore, this application seems not to be maintainable. Learned counsel for the applicant seeks time to assist the Court in this matter"., Today the learned counsel has argued that the respondent No,1 and the detainee are residing at Karachi and therefore, since the respondent No,1 is issuing threats for dire consequences therefore, they could not appear before the concerned Guardian and Wards Court, hence this application.
2. The learned counsel was then asked as to in which paragraph such facts about the threats for dire consequences have been mentioned, the counsel declined and stated no such facts have categorically been mentioned in the application but submits that it is a fact.
3. ' Learned counsel further submits that the respondent No,1 has also instituted a suit for restitution of conjugal rights bearing Suit No,142/2012 before the IInd Family Judge, Karachi (Central). Learned counsel in support of his argument that this court has jurisdiction to hand 'over the custody of minor to the application, has relied upon the case of Mst. Rubia Ayaz v. The State reported in PLD 2001 Karachi 197 and also case of Miss Hina Jilani v. Sohail Butt reported in PLD 1995 Lahore 151. It is contended by learned counsel that in the first judgment refei-red above the learned Judge of this Court has held:- "that the minor in this case Master Saad Ahmed Khan, is aged about 4 years and therefore, the legal custody of the minor should be with the mother. The custody of the minor with the father would therefore, be deemed to be illegal and improper. I am fortified in my views that the following passage contained in Urdu translation of Hidaya Volume-II by Allam Moulana Sayed Amir Ali, published by Qanuni Kutab Khana, Katchery Road, Lahore, at page 326"
4. ' In this referred case the minors were of 4 years and 2 years old and the "Hidaya reference" which is referred in PLD 2001 Karachi 197 also establishes that in case of suckling child, the best parent to have the custody would be mother.
5. However, the facts of case in hand are totally different to the case referred by the learned counsel for applicant. In this case the age of alleged detainee is above 13 years and thus the reasons on the basis of which the aforesaid order in the reported case was passed are not available in this case.
6. ' The applicant has the best efficacious remedy available under the law i,e, an application for interim and permanent custody under the Guardians and Wards Act, which has not been exhausted by the applicant. If at all the applicant claims that she could provide better welfare to the minor, can be best determined by the concerned Guardian and Wards Court, as the scope of this application under section 491, ' Cr.P.C. Is limited. For the convenience section 491, Cr.P.C. Reproduced as under:-- "(a) that a person within the limits of its [appellate criminal jurisdiction] be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty; ' Thus the limits prescribed by section 491, Cr.P.C. Are limited only to the "improper and illegal" custody, which is not the case here. Neither any kind of cruelty or maltreatment pleaded by the applicant. Hence, the custody of the alleged detainee with the father can neither be termed as illegal or improper under the circumstances.
7. ' I, therefore, in view of above, dismiss the application under section 491, Cr.P.C. However, in case the applicant prefers to file any application under Guardians and Wards Act for interim custody along with application for permanent custody, the application for the interim custody shall be disposed of within 15 days from the date of service upon the respondent No,1 and the welfare of the child shall be the paramount consideration for deciding such application for interim custody by the concerned court.