UZMA VAHID Versus MUHAMMAD JAVED UMRAO

The petitioner Uzma Vahid daughter of Vahid Muhammad resident of 24‑B, 10th Central Street Phase II Defence Housing Authority, Karachi 46 has moved this petition under section 491, Cr.P.C. praying that her minor daughters, namely, Nadia Umrao born on 17‑11‑1981 and Nida Umrao born on 22‑10‑1984 be ordered to be brought before this Court; and to be handed over to her. The circumstances giving rise to the institution of this petition are, that the petitioner was married to the respondent Muhammad Javed Umrao son of Major General (Retired) Muhammad Umrao Khan on 23rd September, 1977 at Karachi, and out of the said wedlock two minor female children were born. It is alleged by the petitioner that on 15‑6‑1987 the respondent removed the children from her marital home to Lahore without the knowledge and consent of the petitioner and removed them to Pakpattan, where the respondent owned agricultural land. It is further alleged that the petitioner made hectic efforts to communicate with her children and ‑to persuade the respondent to bring them back to Lahore, but the respondent adamantly refused to do so. It is further alleged that the respondent even refused to communicate with the petitioner and did not even answer the telephonic calls. At one point of time, it is alleged that the petitioner was able to communicate with the respondent in a hospital, where father of the respondent had been admitted for treatment. Allegedly, the respondent became hostile towards the petitioner, and told her that she could do whatever she liked, but he will not permit her to see the minor daughters. The respondent also told the petitioner that the children were in Pakpattan, and also threatened the petitioner with grevious bodily harm, if she went to the village to see the children. It is further alleged, that on account of such grave situation, the petitioner who was left all alone in Lahore had to request her mother and sister living in Karachi to come to her rescue. Accordingly, the mother and sister of the petitioner reached Lahore, but all efforts on their part also proved to be futile. It is also alleged that the respondent then saw to it that the petitioner also abandons the marital home, because the servants were withdrawn, car was also removed, and he stopped making any payment for household expenditure. Allegedly, the respondent also sent his tenants armed with Daangs compelling the petitioner to leave the marital home. Constrained by such circumstances the petitioner left Lahore for Karachi on or about 30‑7‑1987.

2. On 7‑7‑1987, tae petitioner received a registered letter containing Talaq Nama and a Notice of Talaq was also sent to the Chairman. After the receipt of this Notice the petitioner again made notice efforts to establish contact with the respondent, but all these attempts ended in smoke. The petitioner then sent legal notices to the respondent enquiring about her children and the intention of the respondent about their custody and care, but all these notices were not heeded to by the respondent. Ultimately, the respondent severed all the connections with the petitioner.

3. The petitioner then returned to Lahore and instituted an application under section 25 of the Guardians and Wards Act alongwith an application under section 12 of the same Act for obtaining the interim custody of the minors. The Guardian Judge at Lahore sent notices to the respondent to appear on 20th October, 1987 at both the addresses of the respondent at Lahore as well as at Pakpattan Notices were not served, and on the notice sent to Pakpattan it was reported that the respondent was in Lahore while notice sent to Lahore contained the report that the respondent was in Pakpattan. Thus, the respondent allegedly avoided to appear before the Guardian Judge at Lahore. The Guardian Judge at Lahore observing that the respondent was deliberately avoiding to receive the notice, passed an order on 1‑11‑1987 directing the respondent to produce the children. in the said Court on 14‑11‑1987. This notice was also not received by the respondent, and service of the notice once again was avoided in the same fashion referred to earlier.

4. It is alleged by the petitioner that on account of such conduct of the respondent, she had to invoke the jurisdiction of this Court under section 491, Cr.P.C. for the production of the minors in this Court.

5. This petition for Habeas Corpus (Criminal Miscellaneous No. 595‑H of 1987) has a chequered as well as interesting history. On 17‑11‑1987 when the petition came up for hearing before this Court, Bailiff of this Court was deputed to recover and produce the minor children in this Court on 18‑11‑1987. The Bailiff was directed to ascertain and recover the minors at Lahore as well as at Pakpattan.

6. On 18‑11‑1987 it was reported by the Bailiff that he has not been able to find out the minors at Lahore as well as at Pakpattan's address. On the same day i.e. 18‑11‑1987, Mr. Hakim Qureshi, Advocate entered appearance on behalf of the respondent and filed his power of attorney duly signed by the respondent. The learned counsel for the respondent was directed to instruct his client to appear in this Court alongwith the minor children on 19‑11‑1987.

7. On 19‑11‑1987, the respondent did not comply with the orders of this Court, and his counsel Mr. Hakim Qureshi, Advocate frankly informed this Court that he was unable to contact the respondent despite his best efforts. Compelled by the paculiar situation created by the respondent, this Court had no option, but to issue non‑bailable warrants against the respondent. The Dy. Inspector‑General of Police, Lahore Range, Lahore was directed to execute the warrants and to produce the respondent in this Court on 21‑11‑1987 alongwith the minor children.

8. On 21‑11‑1987, Mr. Muhammad Asghar Cheema, A.D.I.‑G., Lahore Range, who was deputed to execute the said warrants appeared in this Court and stated that the respondent was neither available at Lahore nor at Pakpattan, and wanted more time for the execution of the warrants. Accordingly, a week's time was given to the police officials for the execution of the said warrants. To obviate any possibility with regard to the removal of the children abroad, this Court also directed the Immigration Authorities to prevent the departure of the respondent and the minor children to any destination outside the country.

9. On 28‑11‑1987 besides Mr. Hakim Qureshi, Advocate for the respondent, another counsel i.e. Sh. Muhammad Shafi Advocate also appeared on behalf of the respondent. Mr. Muhammad Asghar Cheema, A.D.I.‑G., Lahore Range and Mr. Rehmat Ullah Khan Niazi DSP Okara, both stated that despite the fact that the respondent had entered into another contract of marriage on 20‑11‑1987 they have not been able to find out the respondent. The situation so created by the respondent led this Court to summon the Deputy Inspector -General of Police, Lahore Range, Lahore in this Court. On 1‑12‑1987. Deputy Inspector‑General of Police Lahore Range, Lahore appeared in this Court, and undertook to take all steps to obey the orders of this Court, accordingly, the case was adjourned to 8‑12‑1987.

10. On 8‑12‑1987 father of the respondent Major General (Retired) Muhammad Umrao Khan moved an application praying, that non‑bailable warrants issued by this Court against the respondent be withdrawn. The said application was rejected, and the father of the respondent was also directed to inform the respondent to appear alongwith the children in this Court. Both the police officials again expressed their inability to execute the warrants, because the respondent was not available.

11. Judging the conduct of the respondent, this Court then proceeded against the respondent under section 87/88, Cr.P.C. The District Magistrates at Okara and Sahiwal were directed to issue a proclamation under section 87, Cr.P.C. and under section 88, Cr.P.C. property of the respondent was attached. Similarly, on 15‑12‑1987 the property of the respondent consisting of a plot in Lahore was also ordered to be attached.

12. On 23‑12‑1987, it was brought to the notice of this Court that after the direction to issue proclamation and to attach the property, the respondent had manoeuvred to transfer his property in favour of his father. It further came to light that on 1‑11‑1987, the respondent got an oral mutation of gift entered in favour of his father and the said mutation was sanctioned on 16‑11‑1987, this Court took such act of the respondent as an attempt to frustrate its process, accordingly, Revenue Officer at Pakpattan was directed to submit a report and to produce the record of the mutation. Police authorities were again directed to execute the warrants against the respondent.

13. In the meanwhile, on account of the winter vacations, this Court was closed. On 5‑1‑1988, the respondent surrendered himself before this Court and my learned brother Mr. Justice Raja Afrsiab Khan, admitted the respondent to bail in the sum of Rs. three hundred thousand.

14. On 13‑1‑1988, another application was moved before my learned Brother Mr. Justice Raja Afrasiab Khan under section 5611‑A, Cr.PC, in which, a prayer yeas made that the petitioner be directed to meet the minor children at Abbottabad. for which the respondent had made appropriate arrangements. The said application was disposed of with the observation that the petitioner if so advised may meet the minors at Abbottabad.

15. It is pertinent to mention that during his abscondence, the respondent very cleverly and clandestinely, invoked the jurisdiction of the Guardian Judge at Abbottabad by moving an application under sections 7 and 25 of the Guardians and Wards Act. The respondent sought a declaration from the Court at Abbottabad for being appointed as guardian of the minors, and also obtained a direction that during the pendency of the said application, minors should not be removed outside the jurisdiction of the Court at Abbottabad.

16. Prima facie this was a contumacious attempt to frustrate and sabotage the orders of this Court thus the respondent was directed to produce the children in this Court by giving prior information to the Guardian Judge at Abbottabad about the existence of the orders of this Court. It was further observed by this Court that this petition was moved on 17‑11‑1987 and on 20‑11‑1987 the respondent entered into another contract of marriage, and during the existence of the orders of this Court for the production of minors, the respondent taking advantage of his abscondence manoeuvred to obtain the orders from the Court of the Guardian Judge at Abbottabad to create a conflict of jurisdiction. However, since the respondent was present in Court, therefore, I directed him to produce the children on 19‑1‑1988.

17. On 19‑1‑1988 the respondent did not produce the minor children and stated, that one of the children has been hospitalized and in support thereof, a medical certificate was also produced in this Court.

18. Keeping in view the persistent contumacious conduct of the respondent this Court did not believe the respondent, and thus the respondent undertook to produce the children in this Court on 26‑1‑1988.

19. On 26‑1‑1988, the minor children were not produced in this Court, and it was alleged that the minors were sick at Abbottabad. Accordingly, this Court provided the last opportunity to the respondent to produce the children in this Court on 30‑1‑1988.

20. Ultimately, on 30‑1‑1988, respondent produced the children in this Court and this Court allowed the petitioner to see the children either in the office of Dr. Abdul Basit, Advocate for respondent or in the office of Miss Hina Jillani, Advocate for the petitioner:

21. On 31‑1‑1988 the respondent was directed to afford daily an opportunity to the petitioner to see her children.

22. On 17‑2‑1988 the case was fixed for hearing and an adjournment was sought by the learned counsel for the respondent on account of the marriage of his sister. This Court directed the respondent to hand over the custody of the children to the petitioner. The respondent was directed to see the children daily from 3‑00 p.m. to 8‑00 p.m. The permission was also allowed to the respondent to take the children with him during the hours allowed to him to see the children.

23. On 24‑2‑1988 when this case was fixed for hearing this Court was informed that the respondent had taken the children to Abbottabad for appearing before a Division Bench in Peshawar High Court at Abbottabad in connection with the guardianship matter.

24. It is interesting to note that the respondent by creating conflict of jurisdiction, exploited the same and moved a petition seeking leave to appeal in the Supreme Court of Pakistan challenging the assumption of the jurisdiction by this Court. The Supreme Court of Pakistan dismissed the said petition vide order dated 24‑2‑1988.' Orders of the Hon'ble Supreme Court are reproduced hereunder:‑

"While proceedings under Guardians and Wards Act were proceeding at Lahore, Habeas Corpus Petition was filed at Lahore. While both these proceedings were pending there, the petitioner filed another petition at Abbottabad and obtained an order against the removal of minors from Abbottabad. In this fashion prima facie a conflict of jurisdiction has been engineered.

In the circumstances, there is no case for interfering with the High Court's order of production of minors. Let the petitioner produce the minors before the High Court. However, the High Court will not transfer the custody in Habeas Corpus Petition, on the minors having been produced though it may otherwise proceed with the matter."

Since the respondent and the children were absent on 24‑2‑1988, therefore, the respondent was directed to appear and produce the minor children on 27‑2‑1988.

25. On 27‑2‑1988 Criminal Miscellaneous No.154‑M of 1988 was moved by the respondent in which it was contended, that there were conflicting judgments delivered by the Superior Court with regard to the interpretation under section 491, Cr. P. C. It was contended that one view was that in exercise of the powers under section 491, Cr.P.C., the High Court cannot decide the question of the custody of the minors, while the other view was to the contrary. It was further prayed, that such conflict required authoritative opinion, therefore, it was desirable that I should refer this case to ‑my Lord the Chief Justice for the constitution of a larger bench. I considered the judgments cited before me and in view of the judgment delivered by the Supreme Court of Pakistan in a case reported as Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6 I disallowed the prayer of the respondent for the constitution of a larger, bench. It was also argued that the aforesaid judgment only contained Obiter Dicta, therefore, the Supreme Court of Pakistan had not completely answered the question. The argument was fallacious, inasmuch as, even the obiter dicta of the Supreme Court is binding upon this Court. At this stage, I directed the respondent to hand over the custody of the children to the petitioner and the respondent was also allowed to see the children daily from 3‑00 p.m. to 6‑00 p.m. either in the office of Dr. Abdul Basit, Advocate for the respondent or in the office of Miss Hina Jillani, Advocate for‑the petitioner.

26. Another Criminal Miscellaneous No. 176‑M of 1988 was moved before my Lord the Chief Justice praying, that a larger bench be constituted to resolve the conflict. The said application was dismissed on 29‑2‑1988.

27. On 1‑3‑1988, the petitioner informed this Court that the application for the constitution of larger bench has been dismissed by the Hon'ble Chief Justice. The learned counsel for the petitioner also requested for an adjournment since she had to go abroad. On behalf of the petitioner, it was prayed, that she has to go back to Karachi, therefore, she be allowed to take the children with her. This prayer was opposed by the learned counsel for the respondent, but keeping in view the fact that since the separation of the spouses the custody of the children remained with the respondent except for a short period, therefore, I directed the petitioner to take the custody of the children for proceeding to Karachi subject to her furnishing bail bonds in the sum of Rs. three hundred thousand for her re appearance and that of the children in this Court on 22‑3‑1988.

28. While I was holding Court at Rawalpindi Bench another Criminal Miscellaneous No.216/M of 1988 was moved praying that the orders attaching the property of the respondent be recalled. Since the respondent had surrendered himself before this Court, therefore, orders of this Court attaching the property of the respondent were recalled on 6‑3‑1988.

29. The matter has been heard at length. The learned counsel for the respondent Dr. Abdul Basit, Advocate at the very outset argued, that this Court had no jurisdiction under section 491, Cr.P.C. to decide the question of the custody of the minors, and it was urged that the judgments in support of this view given by the High Court should be followed. Since these were Single Bench judgments, therefore, this Court could differ with them. Furthermore, judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6 was binding on this Court, therefore, this contention was repelled. The learned counsel for the respondent then conceded that this Court has the jurisdiction under section 491, Cr.P.C, and argued that this Court should refrain from deciding the question of custody, inasmuch as, the proceedings before the Guardian Judge at Lahore were pending, therefore, the parties should be allowed to have the decision from the said Court. It was further contended that the proceedings before the Guardian Judge at Abbottabad have been stayed. It was also contended before this Court that the respondent shall not press the petition at Abbott abad if this Court leaves the question for determination by Guardian Judge at Lahore.

30. Essentially, the question relates to the interpretation of section 491, Cr.P.C. Section reads as under:‑

Section 491, Cr.P.C.

(1) Any High Court may, whenever it thinks fit, direct:‑

(a) that a person within the limits of its appellate criminal juris diction be brought up before the Court to be dealt with according to law.

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.

(other clauses of the section are not applicable/relevant. )

The above quoted provision manifests that the High Court has two‑fold jurisdiction;

(i) to deal with the person within its appellate criminal jurisdiction according to law; and

(ii) to set him at liberty if he is illegally or improperly detained.

31. The question which falls for determination however, is that ' the Court finds that the person brought before it was not being illegally or improperly confined or detained, the order can be passed regarding the custody of that person. If a person is a minor, the Court may make over his custody to the Guardian who will be dealing with the matter in accordance with law.

32. The next important issue in this case is to consider the question of Hizanat, a doctrine of Muslim Law which is applicable to the parties:

It will be advantageous to reproduce the contents of Chapter V dealing with the custody of children as given in Muhammadan Law by Ameer Ali pages 222, 223, edition 1965. The contents are reproduced hereunder:‑

"'The Hazina is the woman to whom belongs the rearing up of a child'. The conditions of the Hizanat are that the Hazina should be free, adult, trustworthy and capable of bringing up the child and not married to a stranger."

33. According to the Fatawai Alamgiri;

"The mother is of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution."

34. A part from Radd‑ul‑Muhtar which reads, "that the right of the mother to the custody of her child is established whether she be a Moslemah or Kitabia or a Majoosia, and even though she be separated from her husband.

It will thus be seen that this right belongs to her, qua, mother and nothing can take it away from her except her own mis conduct

Similarly, the tenderness of their age or the weakness of B their sex, renders a mother's care necessary, the Mohemmadan Law supports the mother's natural right to the custody of her children and allows it to take precedent of the paternal right for a certain specified time.

Similarly, according to the Hanafi doctrines, the mother is entitled to the custody of her daughter until she arrives at puberty.

According to the judgments of the Court of Algiers in several cases presided over by Hanafi Kazis have followed the Maliki doctrines and held that the mother is entitled to the custody of her daughters until their marriage.

35. The right of Hizanat, a salutary principle of the law is meant for the exclusive benefit of a child. However, this Hizanat is lost ii the mother remarries. The rearing up of a female child by the mother reflects the extreme care which a female child requires and such requirement can only be met by the mother.

36. Adverting to the question that the matter should be determined by the Guardian Judge at Lahore to the exclusion of this Court. The proposition is devoid of substance. Merely because the petitioner i.e., mother has invoked the jurisdiction of the Guardian Judge would not debar her from invoking the jurisdiction under section 491, Cr.P.C., because both the remedies are available to her. Hence, the pendency of the application before the Guardian Judge at Lahore is no bar to the exercise of jurisdiction under section 491, Cr.P.C.

37. I have also gone through the case law on the subject in the cases reported as Begum Gulzar Khurshid Ahmad . Cdr. Sajjad Akbar 1977 PCr.LJ 800, Mst. Safia v. Ghulam Hussain Shah P L D 1970 AJ&K 13 and Mst.. Khurshid Begum v. Muhammad Hussain 1968 P Cr. L J 1090. It has been clearly laid down that in exercise of the jurisdiction under section 491, Cr.P.C. this Court can pass an order with regard to the custody of the minor children and the West Pakistan Family Courts Act, 1964 thus does not oust the jurisdiction of the High Court under section 491, Cr.P.C. In. the case reported as Ahmad Nawaz and three others v. The State P L D 1968 Lah. 97 and Mst. Zohra Begum v. Sh. Latif Ahmad Munawar P L D 1965 Lah. 695, this Court has also gone to the extent of laying down that the custody of the children by the father was illegal and improper and, therefore, this Court had ample jurisdiction to exercise its powers under section 491, Cr.P.C.

38. It was also attempted to argue that the West Pakistan Family Courts Act, 1964, ousts the jurisdiction of other Courts and, therefore the jurisdiction of this Court also stands ousted; the contention is fallacious, because as far as any clause with regard to the ouster of jurisdiction is concerned, the same has to be construed very strictly. The legislature has nowhere laid down that after the promulgation of West Pakistan Family Courts Act, 1964, the provision of section 491. Cr.P.C. cannot be pressed into service. Furthermore, this Court has also ample power to deal with this issue under Article 199 (1)(b) of the Constitution.

39. In another case, reported as Mst. Ghullan v. Allah Ditta 1984 PCr.LJ 1047, it was laid down that the custody of the girl with the father was illegal and she was restored to the mother. It was also held, that the High Court was competent to decide this issue in view of the provision of section 491, Cr.P.C.

40. Lastly it was argued that the respondent was a 'Rajput' by caste and on account of high family traditions and customs, the custody of the children should remain with the respondent. It may be observed here that this Court is bound by the dictates of law and not with the characteristics of a tribe.

41. After anxious consideration of the case and particularly ill view of the fact that the respondent has married with another woman, I am of the view that it will not be in the welfare of the minors to be reared up by a step‑mother. On the other hand, the petitioner, has not remarried and is an educated woman and she being a mother is entitled to the custody of the minor children under her right of 'Hizanat' which she has not lost. Accordingly, I direct that the custody of both the minor female children shall remain with the petitioner till they attain puberty. However, the respondent would be at liberty, to meet the female children.

S.A./U‑22/L Petition allowed.