Mst. NAZIA PERVEEN vs S.H.O etc
This habeas corpus petition was filed by the mother of three minor children, alleging their illegal detention by their father, the respondent. The core legal question was whether the High Court, exercising its parental jurisdiction under Section 491 of the Code of Criminal Procedure 1898, could restore custody of minors to the mother despite pending guardianship proceedings. The Court observed that the mother held the primary right of hazanat given the minors' ages and noted that one child was being denied education and forced into labor at a workshop. The Court held that while the Guardian Court is the final arbiter for permanent custody, the High Court is not precluded from intervening to protect the welfare of minors and restore custody to a parent unlawfully deprived of it. The petition was allowed, and custody was restored to the mother, with directions for visitation rights for the father and a mandate that the pending guardianship proceedings proceed independently on their own merits.
- Can the High Court exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to restore custody of minors when guardianship proceedings are already pending?
- Does the pendency of a custody application before a Guardian Court preclude the High Court from passing interim orders regarding the welfare and custody of minors?
- Section 491, Code of Criminal Procedure 1898
- Section 25, Guardian & Wards Act 1890
ORDER
Minor detenues, namely , Moqaddas Bibi (aged about six years), Muhammad Arslan (aged about 7 years) and Muhammad Farhan (aged about 10 years) have been produced before the Court by Respondent No, 2 namely Muhammad Akhtar , their father .
2. This petition has been filed by the petitioner regarding the alleged illegal and improper detention of her minor children named above by the Respondent No,
2. The petitioner is the real mother of the minors and keeping in view the ages of the minors the first right of hazanat, regarding custody of minors, lies with the petitioner . As per contents of this petition, the minors were snatched from the custody of the petitioner by the Respondent No, 2 alongwith Respondents No, 3 to 4 on 25.01.2019. The petitioner has also appended her affidavit alongwith the present petition regarding the correctness of the contents of this petition. No counter affidavit has been filed by Muhammad Akhtar , Respondent No, 2 so as to challenge the contents of the affidavit. Marriage between the parties is not intact however there is nothing adverse against the petitioner to deprive her from the custody of her minor children. The Court has inquired from Muhammad Farhan (detenue) as to what he is doing who has replied that he works at a motorcycle shop and does not go to the school. The said Muhammad Farhan (detenue) is being deprived of motherly love as well as educ ation by his father who has got him employed at a motorcycle workshop.
The petitioner is living with her parents. Learned counsel for the Respondent No, 2 has submitted that appropriate proceedings were initiated before the learned Guardian Court and as the matter is pending before the learned Guardian Court, therefore, the question regarding custody and welfare of minors should be left to be determined by the Court of competent jurisdiction after a fair trial and evidentiary hearing to enable the parties to put all requisite material before the Court. He further submitted that an informed decision can be made by the learned Guardian Court regarding the welfare and custody of the minors. It is true that t Guardian Court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody , such parent cannot seek remedy to regain the custody while the matter is sub judice before a Guardian Court. This Court, in exercise of its power under Section 491 Cr.P.C., has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minors and to ensure that no harm or damage comes to them physica lly or emotionally by reason of breakdown of family between the parents . Reliance is placed on the case of Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others (2018 SCMR 427 ).
3. In light of the above discussion, the instant petition is allowed and the custody of minors namely , Moqaddas Bibi (aged about six years), Muhammad Arslan (aged about 7 years) and Muhammad Farhan (aged about 10 years), is ordered to be handed over to the petitioner . It has already been brought in the notice of the Court that the application under Section 25 of the Guardian & Wards Act, 1890 is pending before the learned Judge Guardian Court, so it is further directed that the petitioner shall facilitate the Respondent No, 2 to meet with the minor children and shall produce the minors before learned Judge Guardian Court as and when directed by the said Court. It is also made clear that although Respondent No, 2 is permitted to meet with his minor children, however , he will not take them out with him from the premises of the Guardian Court concerned. It is also made clear that the petition pending before the Court of the learned Judge Guardian Court shall be decided on its own merits without being influenced by any observation made in this order .