Syed AHMED ALI vs STATION HOUSE OFFICER and 2 others s
This criminal revision application was filed by the applicant challenging the order of the Incharge Sessions Judge, Karachi (Central), which dismissed his application under Section 491 of the Code of Criminal Procedure 1898 seeking the recovery and restoration of custody of his minor daughter from her mother. The applicant sought enforcement of an interim order of a Canadian court. The High Court observed that the foreign order was passed in the mother's absence, was temporary, and did not meet the criteria of Section 13 of the Code of Civil Procedure 1908. Furthermore, the applicant had already exhausted his remedy under Section 25 of the Guardians and Wards Act 1890, wherein the Family Court dismissed his custody claim and the appellate court dismissed his appeal as time-barred, rendering that decision final. The High Court held that proceedings under Section 491, Cr.P.C. are not meant to overturn final custody adjudications made by Guardian Courts, particularly when the minor is not in illegal detention and the father enjoys regular visitation rights. The revision application was accordingly dismissed.
- Can custody of a minor be transferred under Section 491 of the Code of Criminal Procedure 1898 after the applicant has already exhausted and lost custody proceedings under the Guardians and Wards Act 1890?
- Is a temporary custody order passed by a foreign court in the absence of the respondent enforceable under Section 13 of the Code of Civil Procedure 1908 through Section 491 of the Code of Criminal Procedure 1898?
- Does a minor remain in illegal confinement or detention of the mother under Section 491 of the Code of Criminal Procedure 1898 when the father is granted regular visitation rights by the Family Court?
- Section 491, Code of Criminal Procedure 1898
- Section 13, Code of Civil Procedure 1908
- Section 25, Guardians and Wards Act 1890
ORDER
' FAROOQ ALI CHANNA , J.---The applicant through the instant criminal revision application has challenged the legality and propriety of the order dated 8-6-2010 passed by learned Incharge Sessions Judge, Karachi (Central), (referred to hereinafter as trial court), dismissing the application under section 491, Cr.P.C, filed by the applicant Syed Ahmed Ali for restoration of custody of his minor daughter Mahrooh. The applicant in his application has stated that dispute arose between him and his wife Mst. Shazima Ahmed the respondent No,2 at Canada, she approached Canadian Court, however she illegally removed his daughter from his lawful custody, therefore he approached the Canadian Court for custody of minor, Canadian court passed order' for handing over the minor Mahrooh to the applicant who thereafter approached the trial Court for implementation of the, order of Canadian court through application, under section 491, Cr.P.C.
2. The trial court after hearing the counsel for both the parties dismissed the application, observing that the order of the Canadian court was passed in absence of the respondent No,2, the same was also temporary and not conclusive order, therefore the provisions of section 13, C.P.C. For implementation of the order of foreign court are not attracted.
3. Besides the observation of the trial court, it would not be out of context to mention that the applicant also filed application under section 25 of the Guardians and Wards Act, 1890 for the custody of his minor daughter Mahrooh Ahmed in the court of IInd Civil/Family Judge, Karachi (Central), the Family Court framed the issues, recorded the evidence led by both the parties and after hearing the counsel for both the parties dismissed the said application vide order dated 29- 5-2010. The appellant assailed the order of Family Court in Family Appeal No,104 of 2010, however the appellate court has also dismissed the appeal being time barred, as the order of family court had attained finality.
4. It is settled law that appropriate proceedings, for ultimate custody of a minor would be before the Guardian Court, however the High Court under section 491, Cr.P.C. In appropriate cases can pass interim order pending the resolution of disputes by the Guardian Court, where the question of interest, welfare and the ultimate custody of the minor is to be adjudicated after proper appreciation of the facts and circumstances. The applicant has exhausted the remedy provided under the Guardians and Wards Act, and has lost case for custody of minor Mahrooh.
5. Learned counsel during arguments, to a query, has admitted that in pursuance of the order of Family Court, the applicant is holding meetings with the minor baby Mahrooh on every alternate Saturday, which manifests that minor Mahrooh is not in illegal detention of her mother, nor her life is in danger. Admittedly minor is being produced before the family Court and the applicant has free access to meet her, in the circumstances no order for transfer of custody of minor Mahrooh from her mother to the applicant in exercise of powers under section 491 Cr.P.C. Is warranted, learned counsel for the applicant has failed to point out illegality or irregularity in the impugned order, requiring the interference of this court in its revisional jurisdiction.
' The criminal revision application is dismissed accordingly.
Cited by 1 case
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