Mst. TANVEER BIBI vs SHO POLICE STATION MANDI BAHAUDDIN and others
This matter arises from a petition filed under Section 491 of the Code of Criminal Procedure 1898 by the petitioner mother seeking the recovery and custody of her two minor children, aged six and four years, which was dismissed by the High Court. The core legal question before the Supreme Court concerned the rightful interim custody and welfare of the minor children whose father was residing abroad and whose mother alleged maltreatment and forceful separation from them by the paternal grandfather and uncle. The Supreme Court converted the petition into an appeal and allowed it, holding that the mother is legally entitled to the custody of her minor children of tender age in the absence of their father, particularly when the children appeared happy and contented with her and it serves their welfare and best interest.
- Whether the mother is legally entitled to the custody of minor children of tender age in the absence of their father?
- Can a petition under Section 491 of the Code of Criminal Procedure 1898 be utilized for the recovery and custody of minor children?
- What considerations govern the delivery of custody of minors in habeas corpus petitions?
- Section 491, Code of Criminal Procedure 1898
ORDER
' GULZAR AHMED, J.---The petitioner had filed a petition under section 491, Cr.P.C. For recovery and custody of her two minor children namely Muhammad Anas, aged about 6 years and Arooj Fatima, aged about 4 years before the High Court. The High Court through the impugned order dated 12.04.2016 did not allow the petition.
2. The petitioner Mst. Tanveer Bibi is married to Basharat Ali, who is the son of respondent No,2 and brother of respondent No,3. Basharat Ali appears to be employed in Saudi Arabia and has left behind the petitioner and two minor children in the house of his father, respondent No,2 and .Brother, respondent No,3. It is alleged by the petitioner that she was being maltreated by respondents Nos.2 and 3 and also while snatching her two minor children she was turned out of their house.
3. In compliance to the earlier order of this Court dated 24.05.2016 the minors have been produced before the Court. The petitioner was allowed time to meet her minor children and subsequently when the matter was taken up again both the minors looked quite happy and contented with their mother. Nothing has been stated by respondents Nos.2 and 3 as to why the petitioner had to leave their house. In the circumstances where both the minors are of tender age and in the absence of their father, who has gone abroad, the mother is legally entitled to their custody, who is living with her father and brother. Therefore, keeping in view the welfare and best interest of the minors their custody is delivered to their mother, the petitioner. Consequently, the petition is converted into appeal and allowed in the above terms.