Mst. ABIDA vs S.H.O., RATODERO POLICE STATION (DISTRICT LARKANA) and 3

ORDER

' ABDUL MAALIK GADDI, J.---Office objection overruled.

' The applicant through this application under section 491, Cr.P.C. Has sought following relief:--

(a) That this honourable Court may graciously be pleased to direct the respondent No.3 namely Ahmed Ali son of Mohammad Ramzan Mangrio to produce minor son of applicant namely Hasnain 30 days and two minor daughters namely Sadia (02 years) and Urooj (03 years) in this honourable Court and hand over their custody to the applicant as she claims her right of Hizanat.

(b) Award costs.

(c) Grant any other equitable relief.

2. It is contended by learned Advocate for the applicant that the applicant was married to respondent No.3 namely Ahmed Ali and out of the said wedlock, the applicant has given birth to three children namely 1.Hasnain aged 30 days suckling child, 2.Baby Sadia aged 02 years and 3.

Baby Urooj aged 03 years. It is also argued that there was exchange marriage. Sister of the respondent No.3 namely Mst. Shabana was married with the brother of applicant and the said couple is issueless. The sister of respondent No.3 is living in the house of in-laws since eight months and maintenance is being provided by the brother of applicant. He further argued that on 24-10- 2013 in the morning at about 8-00 a.m., the brother of applicant came to his in-laws for his wife but she refused to go with him and thereafter the respondent No.3 (Ahmed Ali) snatched all three children of the applicant and drove her from his house and said that he would send talaknama.

The applicant begged the respondent No.3 and his family members that her children are minor and Hasnain is only 30 days and also ailing but they paid no heed and refused to hand over her minor children.

3. Learned counsel for the respondent No.3 has contended that the respondent No.3 is real father of the minor children as such the custody of the said minors with respondent No.3 is not illegal. Per him, application under section 491, Cr.P.C. Is not maintainable and only guardianship application will lie before the Guardian judge/under the provisions of Guardians and Wards Act, 1890.

4.Learned State counsel has argued that the children are minor as such the applicant is entitled for their custody being mother and right of hizanat is also in favour of the applicant till the minors attain majority and he prays for restoration of the custody of children to the applicant.

5. There is no cavil to the proposition that in the matters pertaining to custody of minor of tender age, the High Court is empowered to issue directions in the matter of habeas corpus under section 491, Cr.P.C. If the custody of the minors was illegally or improperly disturbed. Section 491, Cr.P.C.

Provides more efficacious, speedy and appropriate remedy in a case of illegal or improper custody of minor and the High Court can pass an order regarding temporary custody without prejudice to the rights of the parties for final determination of the dispute pertaining to the custody of minor by the Guardians and Wards Court. The jurisdiction of the High Court under section 491, Cr.P.C. Can only be invoked in a case of illegal and improper custody and not for any other consideration including the welfare of the minors. The right of hizanat having the force of an injunction of Islam is an accepted principle of Islamic Law.

6. Here in this case it is alleged by the applicant in Para-4 of the petition that the respondent No.3 after snatching children drove her from his house. The memo of petition is duly supported by an affidavit of the applicant. No counter-affidavit has been filed by respondent No.3. Objections filed by respondent No.3 to the memo of petition cannot take place of counter-affidavit.

7. Admittedly Baba Hasnain aged about 30 days whose custody has already been handed over by the respondent No.3 to the applicant on 5-11-2013 in this Court whereas Baby Saadia and Baby Urooj are in the custody of respondent No.3. These are aged about 2 and 3 years respectively. They are in tender age would need constant care of mother and it is a universal truth that there cannot be any substitute for a mother and that the lap of mother is God's own cradle for a child, manifestly the custody of minors namely Baby Saadia and Baby Urooj with the respondent No.3 is improper if not illegal.

8. It is argued by the learned counsel for respondent No.3 that the application in hand is not maintainable and only guardianship application will lie before the Guardian Judge under the provision of Guardian and Wards Act, 1890. Reverting to the contention as raised by learned counsel for the respondent No.3, it is suffice to say that High Court as an interim measure can grant custody of minor to his/her lawful guardian even case is pending in the Guardian Court. Reliance in this respect is placed on 2013 M LD 1640.

9. In view of what has been discussed above, this application is allowed and it is directed that the minors shall be handed over by the respondent No.3 to the applicant within three days after passing of this order before the Additional Registrar of this Court.

10. This order shall not, however be a bar in the way of respondent No.3 in establishing his claim for custody of minors before the Guardian Judge by filing appropriate proceedings which if instituted, shall be disposed of in accordance with law and merits of the case.

11. During the course of arguments learned counsel for the respondent No.3 has submitted that the respondent No.3 may be allowed to visit and see their children named above on every Sunday for two hours. Contention of learned counsel for the respondent No.3 has force, therefore, under the circumstances of the case, the respondent No.3 is allowed to visit and see the minors named above at the house of the applicant from 10-00 a.m. To 12-00 noon on every Sunday.