Rashida Bibi vs CPO and 5 others
This matter came before the Lahore High Court through a habeas corpus petition filed by a mother seeking the recovery and custody of her six-year-old minor son from the illegal and improper detention of the father. The core legal question revolved around whether the High Court, exercising parental jurisdiction under Section 491 of the Code of Criminal Procedure 1898, can restore the custody of a minor to a parent lawfully entitled to hazanat (custody) despite the availability of an alternate remedy before the Guardian Court. The Court held that while the Guardian Court is the final arbitrator for child custody, the High Court is not precluded from exercising its parental jurisdiction to protect the welfare of the minor and ensure that a parent unlawfully deprived of lawful custody is granted relief. The key principle laid down is that habeas corpus is an appropriate remedy to restore custody to a parent possessing the primary right of hazanat when abruptly deprived thereof, and that guardianship and custody are distinct legal concepts under Islamic law and statutory provisions.
- Can the High Court exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to restore the custody of a minor to a parent?
- Is custody synonymous with guardianship under the Guardians and Wards Act 1890?
- Does the availability of a remedy before the Guardian Court bar the High Court from entertaining a habeas corpus petition for the custody of a minor?
- Section 491, Code of Criminal Procedure 1898
- Section 4(2), Guardians and Wards Act 1890
- Section 9(i), Guardians and Wards Act 1890
- Section 12, Guardians and Wards Act 1890
- Section 25, Guardians and Wards Act 1890
ORDER
In compliance of the order dated 02.03.2021, the alleged detenue namely Ausaf Ali (aged about 6-years) has been produced before the Court by Usman Khalid (Respondent No 2), his father .
2. This petition has been filed by the petitioner regarding the alleged illegal and improper detention of her minor son namely Ausaf Ali (aged about 6-years). The petitioner is the real mother of the mino r and keeping in view the age of the minor , the first right of hazanat, regarding custody of minor , lies with the petitioner . As per contents of this petition, the minor was removed from the custody of the petitioner by Usman Khalid on 22.02,2021, 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 Usman Khalid (father of the alleged detenue) so as to challenge the contents of the affidavit, It is true that a 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 . 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 minor and to ensure that no harm or dama ge comes to him physically or emotionally by reason of breakdown of family tie between the parents. The basic consideration always is to provide to the child the most natural, most considerate and most compassionate atmosphere to grow up as a better member of the society . The term hidhana in Arabic is derived from the root hadhana which in. Arabic means "the distance between the armpits to the loins", "the chest and the two arms and what includes in between", that can be summed up as "embrace". Accordingly , the word hidhana, which can grammatic ally be either infinitive or noun, means, "to clasp the baby to one's breast ", "to nurture the baby", "to embrace the baby ", which can be viewed as a synonym to "nursing " and "wet nursing ". In Islamic jurisprudence, the term hidhana is used in its lexical meaning and it does not have a new meaning (legal reality), as some believe. Thus, using the word wilaya in the meaning of "guardianship " for the definition of hidhana would not be correct. Hidhana (custody) can literally be said to mean "to embrace or hug" and in the Shari 'a, meats "raising or bringing up of a child". Hidhana is a form of guardianship which women are more suitable to assume because they are more experienced in the area of looking after children and they are generally more caring and compassionate. When it comes to the care of a child, the legal definitions can be confusing, Many people conflate custody with guardianship while the two terms describe very different things. There exists a distinction between guardianship and custody . Under Secti ons 4(2), (S), 9(i) and 25 of the Guardians and Wards Act, 1890, "guardia nship" and "custody" are not held to be synonymous terms. It is observed that "guardian" as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor . Such a person may or may not have the custody of a minor . Custody describes a parent's care of a child, whereas legal guardianship is `granted to someone who is not necessarily be the child's biological parent. Muslim Law, which gives the right of hizanat to the mother , has to be presumed to have considered it to be in the interest of the welfare of such a minor child to remain in custody of their mother . Reliance is placed on the cases of "Mirjam Aberras Lehdeaho v. S.H.O,, Police Station Chung, Lahore and others" (2018 SCMR 427),"Ahmed Sarni and 2 others v. Saadia Ahmed and another" (1996 SCMR 268) "Shaukat Masih v. Mst. Farhat Parkash and others "(2015 SCMR 731), "Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another" (PLD 1995.SC 633) and " Mst. Nadia Perveen v . Mst. Almas Noreen and others " (PLD 2012 SC 758 ).
3. In light of the above discussion, the instant petition is allowed and the custody of minor Ausaf Ali (aged about 6- years) is ordered to be handed over to the petitioner . It has already been brough t in the notice of the Court that Usman Khalid (father of the minors) wants to file applications under Sections 12 and 25 of Guardian & Wards Act, 1800. It is therefore, directed that the learned Guardian Judge shall decide the same, if filed, strictly in accordance with the law and expeditiously , preferably within a period of one month of the filing of the same. It is also directed that the petitioner shall produce the minor before the learned Guardian Judge if, as and when directed by the said Court so as to allow Usman Khalid, the father of the minor , to meet with the minor . However , Usman Khalid shall not be allowed to take the minors out of the premises of the Court of the learned Guardian Judge. It is also made clear that any petitions filed before the learned Guardian Court shall be decided on their own merits, without being influenced in any manner by any observation made in this order and strictly in accordance.