SAIMA NOREEN vs The STATE, and others
This petition was filed under Section 491 of the Code of Criminal Procedure, 1898, seeking the recovery and custody of a one-year-old minor girl from her father, the respondent, following the dissolution of the parents' marriage. The core legal question was whether the High Court could exercise its jurisdiction to grant custody of a minor via a habeas corpus petition when proceedings for guardianship were already pending before a Guardian Judge, and whether a prior agreement regarding custody could override the welfare of the minor. The Court held that the pendency of guardianship proceedings does not create a jurisdictional bar to entertaining a petition under Section 491 of the Code of Criminal Procedure, 1898. Emphasizing the welfare of the minor, the Court ordered the minor to be handed over to the mother, noting that agreements relinquishing custody are often executed under duress and cannot override the minor's welfare. The key principle laid down is that the welfare of an infant, particularly a minor girl, is paramount, and the mother's right to custody in such cases is superior, regardless of prior agreements or pending civil litigation.
- Does the pendency of proceedings under the Guardians and Wards Act, 1890, bar the High Court from exercising jurisdiction under Section 491 of the Code of Criminal Procedure, 1898, for the recovery of a minor?
- Can an agreement between parents regarding the custody of a minor override the court's consideration of the minor's welfare?
- Is a mother entitled to the custody of a one-year-old minor girl despite a prior agreement handing over custody to the father?
- Section 491, Code of Criminal Procedure 1898
- Section 25, Guardians and Wards Act 1890
ORDER
'SYED SHAHBAZ ALI RIZVI, J.---The Televant facts, in small compass, of the instant case are that the petitioner was married to Ameer Azam Khan/respondent No,4 and out of the wedlock, a daughter namely Noor-ul-Minahil was born, now aged about one year. After a few months, the relationship between the spouses became strained and the marriage was dissolved on the basis of Khula.
Respondent No,4, the father retained the custody of the minor. Now the petitioner, through this petition filed under section 491 of the Code of Criminal Procedure, 1898, seeks recovery and production of her minor daughter Noor-ul-Minahil from respondent No,4, the father and custody of the minor to her. Respondent No,4, present in person, has produced the minor before the Court today.
2. The learned counsel for the petitioner contends that the petitioner is roaming from pillar to post since 5-10-2013 when she was deprived of her infant daughter; that she moved an application under section 491 of the Code of Criminal Procedure, 1898 for the recovery of her minor daughter to the court of learned Sessions Judge, Mianwali on 19-10-2013 but all in vain as respondent No,4 had removed the minor to another district beyond the territorial jurisdiction of Addl. Sessions Judge, Mianwali; that being mother, only the petitioner is entitled to retain the custody of the minor girl and that this Court is fully competent to pass an effective order in this regard.
3. On the contrary, learned counsel for respondent No,4 contends that the petitioner filed a suit before the Judge Family Court, Mianwali wherein, she claimed dissolution of marriage, recovery of dowry articles, maintenance allowance, medical and educational expenditures; that the suit was decreed to the extent of dissolution of marriage whereas, it was dismissed as having been withdrawn to the extent of remaining claims. Further contends that the minor was handed over to respondent No,4 by the petitioner voluntarily and she also swore an affidavit on 5-10-2013 in this regard; that now she has also filed an application under section 25 of the Guardians and Wards Act, 1890 for custody of minor before the learned Guardian Judge on 15-2-2014; that the petitioner filed a petition under Section 491 of the Code of Criminal Procedure, 1898 before the learned Sessions Judge, Mianwali which was dismissed on 24-10-2013, hence, the instant petition is not maintainable in view of the pendency of minor's guardianship matter before the competent court.
4. Having heard the learned counsel for the parties, I have noticed that the earlier application under section 491 of the Code of Criminal Procedure, 1898 moved by the present petitioner was dismissed on 24-10-2013 by the learned Addl. Sessions Judge, Mianwali because of want of territorial jurisdiction as the minor was removed to Sheikhupura District by respondent No,4 due to which the petitioner has come to this Court. Keeping in view the age and welfare of the minor, the pendency of the proceedings for custody of the minor before the learned Guardian Judge does not create any jurisdictional bar for this Court and this Court can interfere in such like cases and in this respect reference is made to B the cases of Mst. Zenia v. Ahmed Jawad Sarwar (PLD 1994 Lahore 577), Hiroku Muhammad v. Muhammad Latif (1994 MLD 1682 Lahore) and Syed Ahmed All v. Station House Officer and 2 others (2013 MLD 1625).
5. So far as the contention of the learned counsel for respondent No,4 about the agreement between the parties regarding the custody of the minor according to which she was handed over to respondent No,4 is concerned, I have noticed that said custody was taken by the respondent on 5-10-2013 and the petitioner filed an application under section 491 of the Code of Criminal Procedure, 1898 before the learned Sessions Judge, Mianwali on 19-10-2013 which reflects that she immediately started efforts for the recovery of her infant daughter. This Court is of the vie.: that such agreement, if any, being against the welfare of the minor and normally executed by the women folk, sometime under coercion and undue influence of the male elders of the family, should not be allowed to override the consideration of the welfare of minor. Reference in this regard is placed on the case of Mst. Raffiat Tariq v. D.P.O. Sanghar and 2 others (2009 PCr.LJ 118 Karachi) and Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 Supreme Court 1).
Having further light from the observations given by this Court in the case of Mst. Shehnaz Bibi v.
Muhammad Akram and others (1995 PCr.LJ 307), I am of the considered opinion that it is an undeniable right of the minor girl of such an age to be blessed with the lap of the mother, hence, keeping in view the age of minor, she is handed over to the petitioner, however, it is made clear to the petitioner that she will facilitate respondent No,4 for his periodic meeting with his daughter. The parties would be at liberty to pursue the matter of custody of the minor before the learned Guardian judge who shall decide the same expeditiously in accordance with law without being influence by any of the supra observation of this Court.
6. Disposed of accordingly.