MUHAMMAD KHURSHEED vs IHTISHAM and others

ORDER

' HASAN FEROZ, J.---This order will dispose of Constitutional Petition No.S-1305 of 2013 under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 read with section 491, Cr.P.C. For the custody of detenues Maria Khan and Muhammad Talha.

2. The brief facts of the case of present petition are that the petitioner was married to one Afshan daughter of Riaz Ahmed on 12-8-2009 and out of the said wedlock two children/babies were born namely Maria Khan aged about 3-1/2 years, and Muhammad Talha aged about 9 days. That during the pregnancy of 24-10-2013 the petitioner's wife expired and at the time of death of his wife both the children were handed over to respondents Nos.1 to 3 by the petitioner with assurance that after lOwa they will be handed over to him but after one week when petitioner approached the respondents Nos.1 to 3 they flatly refused to allow the petitioner to even meet his children and further alleged that the house-hold of Rs.10,00,000 have also been misplaced from the house of petitioner which were in the possession of the respondents Nos.1 to 3, and he repeatedly approached the respondents but all went in vain.

3. It has been contended by the learned counsel for the respondents that the right of Hizanat as to the custody of the children vested in the mother devolves into the paternal mother with regard to the suckling baby of 9 days who needs care and lap of a near and dear to the mother and also of 3-1/2 years baby girl needs care of maternal mother who is keeping them properly. The learned counsel for petitioner has relied upon PLD 2004 SC 1, SBLR 2013 Sindh 510.

4. The learned counsel for respondents has contended that baby Maria is in the lap of her maternal grandmother who has also filed Guardians and Wards case before the concerned Court for the permanent custody of the children. The learned Counsel for the respondents has relied upon 2003 MLD (Lahore) 977, 2009 SCM R 1052 and 2011 YLR 348.

5. I have in my consideration that the facts urged by respondent related to the maltreatment of deceased mother of the children cannot be decided in the present Constitutional Petition and are the matter of G&W case which is seized with the matter relating to the determination of custody of the children.

6. The petitioner has relied upon PLD 2004 SC 1 wherein it has been held by Hon'ble Supreme Court that the Courts in the cases pertaining to the custody of a child were not supposed to go into the technicalities of the law and should decide the case keeping in view mainly the welfare of the child.

7. The reliance, made by respondent on 2011 YLR 348 is also in my view wherein it has been held that a minor of tender/suckling age, in the absence of her mother (who had died) the maternal grandmother had a preferential right to the minor's custody.

8. I have in my view that this aspect being the subject-matter of already instituted G&W case, therefore, without prejudice to the said case, instead of entering into the technicalities of the present case invoking of Article 199 of Constitution of Islamic Republic of Pakistan read with section 491, Cr.P.C., is untenable at this stage therefore, I am A not inclined to disturb the custody of the minors from the lap of maternal grandmother into the hands of father who has also not brought on record that who could lookafter the minors with the same zeal and affection as that of the maternal grandmother in such state of affairs, where there is no apparent improper and illegal custody of the children with the maternal grandmother, Article 199 of the Constitution read with section 491, Cr.P.C. Cannot be invoked as equally efficacious remedy is available under G.W. Courts Act.

9. In the above circumstance, the instant Petition is not maintainable and is therefore, dismissed.