Syed MUHAMMAD MAHMOOD ALAM vs MUHAMMAD AFSAR KHAN and anothers
This criminal miscellaneous application under section 561-A, Cr.P.C. was filed by the maternal grandfather impugning the order of the Additional Sessions Judge whereby a habeas corpus petition filed by the respondent-father for the custody of his minor son was allowed. The core legal question was whether the custody of a minor child can be handed over to the natural guardian (father) through a habeas corpus petition under section 491, Cr.P.C. or if exclusive jurisdiction vests in the guardian court, and whether the maternal grandfather has preferential custody rights. The court held that the paramount consideration in minor custody matters is the welfare of the child, and the father being the natural guardian is in a better position to maintain the child and provide proper education. The court further held that while a maternal grandmother may have preferential rights, the maternal grandfather cannot be given preference over the natural guardian, especially when the grandmother has not come forward to claim such right. The application was accordingly dismissed in limine.
- Whether the father being the natural guardian has a superior right to the custody of a minor child over the maternal grandfather?
- Can a habeas corpus petition under section 491 of the Code of Criminal Procedure 1898 be maintained for the custody of a minor?
- Does a maternal grandfather enjoy preferential right for the custody of a minor child under Pakistani law?
- Section 561-A, Code of Criminal Procedure 1898
- Section 491, Code of Criminal Procedure 1898
ORDER
1. ' AFTAB AHMED GORAR, J.---Through this Cr. Misc. Application filed under section 561-A, Cr.P.C.
2. Applicant Syed Mohammad Mahmood Alam has impugned the order dated 15-8-2011 passed by IVth Additional Sessions Judge, Karachi East whereby he granted Habeas Corpus Petition filed by respondent No,1 and handed over custody of minor Mohammad Rayyan to him.
3. ' Brief facts, giving rise to the filing of instant Criminal Miscellaneous Application, are that respondent No,1 was married with daughter of the applicant namely Ismat Sultana on 27-4-2008 and out of said wedlock one son Mohammad Rayyan was born on 15-12-2010. Unfortunately mother of the minor expired on 22-12-2010 and thereafter the applicant, who is maternal grandfather of the child, kept his custody with him. After some time respondent No,1 asked to return the custody of minor but the applicant did not do so. Ultimately respondent No,1 filed Habeas Corpus Petition in the Court of District and Sessions Judge, Karachi East which was allowed vide impugned order, hence this Criminal Miscellaneous Application.
4. ' Learned counsel for the applicant contended that the learned trial. Judge erred in taking cognizance under section 491, Cr.P.C. As there is specific law under the Guardians and Wards Act and the G and W Court has the exclusive jurisdiction to decide the custody of the minor; that minor is milk suckling child and respondent No,1 has no arrangement to look after the child in a proper manner as he goes to job in the morning and return in the late hours of the night; that after the death of his mother, the minor has been living with her maternal grandmother (Nani) who has preferential right for the custody of the minor. In support, he relied upon the cases reported in 2011 M LD 1814' [Lahore] and 2011 YLR 348 [Lahore] wherein it has been held that maternal grandmother
(Nani) has a preferential right for custody of the minor and accordingly custody was handed over to her.
5. ' Conversely, learned counsel for respondent No,1 argued that respondent No,1 being father is the natural guardian of the child and can look after the child and provide necessities of the life including education in a better way. He further contended that the minor is happy with the father, and keeping in view welfare of the child, it would be in the interest of justice that the custody is allowed to continue with the father.
6. ' Learned A.P.-G. While adopting the arguments advanced by learned counsel for respondent No,1 prayed for dismissal of Criminal Miscellaneous Application.
7. ' I have given anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material available on record.
8. It is well settled that paramount consideration in respect of custody of the minor is welfare of the minor. In the present case respondent No,1, being father of the child is his natural guardian. He would be in a better position to maintain and look after the child and provide him livelihoods more particularly proper education. There is no cavil with the proposition, as laid down in the case-law relied upon by the learned counsel for the applicant, that maternal grandmother has the preferential right for the custody of the minor but in the instant case she has not come forward and instead maternal grandfather claims the right of custody who cannot be given preference over the natural guardian viz. Father. Merely mentioning that the child, after the demise of his mother, is being looked .After by his maternal grandmother (Nani) is not enough unless she comes forward and claims such right.
9. ' For the foregoing reasons, I do not find any merits in the Criminal Miscellaneous Application which is dismissed in limine.
10. ' Above are the reasons for short order passed on 5-11-2012,