IMTIAZ ALI Versus THE STATE
ORDER
Brief facts leading to this petition are that Allah Yar, brother of the petitioners, divorced her wife, respondent No.2, for the reason that she was a woman of easy virtue. Respondent No.2 subsequently contracted marriage with one Muhammad Hanif son of Naseer Ahmad on 27-1-1995. From this wedlock, a son, namely, Akmal Waqqas, was born. A case F.I.R. No. 18/95 under section 363, P.P.C. was registered on 27-1-1995, wherein it was alleged that the petitioners had abducted the minor child. An application under section 100, Cr.P.C. was also filed in the Court of Ilaqa Magistrate for his recovery. The child was recovered and was handed over to respondent No.2.
2. Learned counsel for the petitioners, in the first instance, submitted that since the minor child was living in the house of the petitioners, the allegation in the F.I.R. that he was abducted was false and frivolous. He further submitted that as respondent No. 2 contracted subsequent marriage, she had lost the right of custody.
3. I am of the opinion that all these contentions are without any force. According to the F.I.R., the minor child was living with his mother and, therefore, the petitioners had got no right to remove him from the custody of his mother. The fact that respondent No.2 and the petitioners were living in a joint house is not evident from the record. The petitioners cannot take shelter behind the factum of the second marriage of respondent No.2. Apparently he committed a cognizable offence by removing the mirror child from the custody, of his mother. If the petitioners were of the opinion that after the second marriage of the mother, they were entitled to the custody of the minor, then they should have approached the Guardian Judge for that purpose and should not have taken the law into their own hands.
4. It is well-settled that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she attains puberty. The right continues even though she is divorced by the father of the child (1) unless she marries a second husband in which case the custody belongs to the father.
5. Even after the expiry of seven years, the mother is entitled to retain the custody of the minor child unless his welfare demands otherwise because in the final analysis, it is the welfare of the child that weighs against all other weighty considerations. It may be observed that this controversy could only be decided by a Guardian Judge and the whims of prospective Guardians, paternal-uncles in this case, do not figure anywhere.
Under these circumstances, I do not deem it proper to quash the F.I.R. No. 18/95 and the investigation incidental thereto. This petition is, therefore, dismissed in limine.
N.H.Q./I-148/L ` ???????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.