FOUZIA BIBI vs STATION HOUSE OFFICER, POLICE STATION CITY, LODHRAN and another
This petition was filed under Section 491 of the Code of Criminal Procedure 1898, seeking the recovery of a six-year-old minor daughter from the custody of her father, the respondent. The petitioner alleged that the respondent forcibly abducted the child. The core legal question was whether the High Court should exercise its jurisdiction under Section 491, Cr.P.C. to restore custody of the minor to the mother. The Court dismissed the petition, holding that the petitioner failed to establish that the minor was forcibly removed or that there was any urgency, such as a threat of removal from the country or danger to the child's life. The Court observed that the petitioner’s claims were contradicted by her own previous litigation and the lack of evidence regarding the child's recent residence. Relying on the principle established in Mst. Nadia Perveen v. Mst. Almas Noreen (PLD 2012 Supreme Court 758), the Court held that Section 491 jurisdiction is reserved for cases of recent abduction of tender-aged children where urgency exists. The matter of custody was left to the competent Guardian Court.
- Under what circumstances can the High Court exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 regarding the custody of a minor?
- Is a petition under Section 491 of the Code of Criminal Procedure 1898 maintainable when there is no evidence of recent forcible removal or immediate danger to the minor?
- Should the High Court interfere in child custody matters when the issue of guardianship is pending or can be adjudicated by a competent Guardian Court?
- Section 491, Code of Criminal Procedure 1898
ORDER
MUHAMMAD QASIM KHAN, J.---Through this petition under section 491, Cr.P.C., Mst. Fozia Bibi seeks recovery of her daughter Mst. Zainab Bibi (aged six years), from the custody of respondent No.2 (father of the child).
2. The contention of learned counsel for the petitioner that she obtained divorce from respondent No.2 on 11.11.2014, afterwards, the respondent No.2 came to her, to see the minor and one month ago took the minor daughter with him.
3. On the contrary, the learned counsel for respondent No.2 has argued that allegation of forcible abduction of Mst. Zainab Bibi is absolutely wrong, instead Mst. Zainab Bibi as well as her three minor sons namely Shahid (aged fifteen years), Mujahid (aged 13 years) and Salman (aged twelve years), are happily living with him right from the very beginning, as such, it is not a case where jurisdiction under section 491, Cr.P.C. could be exercised and that if the petitioner is interested in the custody of the minor, she may approach the competent guardian court.
4. Heard. Record perused.
5. In pars No. 6 of this petition and as argued before this Court, it has been clear stance of the petitioner that minor (Zainab Bibi) was removed by the respondent forcibly from her house, but no date, time and place has either been mentioned in this petition nor pointed out to the court during arguments.
6. Apart from the above, from the documents attached by the petitioner herself along with this petition, it is clear that petitioner filed a suit for dissolution of marriage on 04.07.2014 against the respondent No.2 and in the said suit although the petitioner pleaded that she had four kids from the loin of respondent No.2, but she uttered not a single word that all or any one of those kids, including Mst. Zainab Bibi (the alleged abductee) was in her custody at the time of filing of the said suit. This fact has materially contradicted the stance taken by the petitioner in this petition that minor Mst. Zainab Bibi was forcibly removed by respondent No.2, especially when no date, time or place could be pointed out by her.
7. There is yet another aspect of the matter i.e. if the minor was forcibly removed by respondent No.2 about a month ago, then as a mother the petitioner could not have waited for such a long period to agitate the issue before this court. Furthermore, if the minor was living with the petitioner, then she could have brought on record school admission certificates, attendance certificates, etc. of the minor to show that minor was getting education under her supervision. The entire above situation, is clear pointer of the fact that minor had not been forcibly taken away by the respondent recently, whereas, the Hon'ble Supreme Court of Pakistan in the case "Mst. Nadia Perveen v. Mst.
Almas Noreen and others" (PLD 2012 Supreme Court 758) has clearly held that "Matter of custody of minor children can be brought before a high Court under section 491, Cr.P.C. only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter. In such a case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge." The above quoted case law is quite applicable to the facts and circumstances of the case in hand, as neither the minor is of such a tender nor could it be established by the petitioner that she was forcibly removed from her by the respondent in recent past, so as to attribute urgency within the meaning of section 491, Cr.P.C, as otherwise, it is no where the allegation of the petitioner that either there is immediate threat of removal of the child from Pakistan or that the life of the child is in danger for any reason including health hazard, etc. In addition to the above, it is admitted position that three sons of the petitioner are already living with their father/respondent No.2, therefore, it may also be inapt to separate the kids from each other, especially when unfortunately they have already lost the union of their parents. This petition, therefore, is dismissed.
However, the parties are at liberty to approach the competent Guardian Court for determination of guardianship of the minors, the question with regard to interim custody shall also be seen by the said Court, if approached in this behalf.
8. Before parting with this order, it is made clear that whatever has been observed above is result of tentative assessm ent and shall not prejudice the case of either side during subsequent proceedings before any forum.