SHABANA NIAZI Versus MUHAMMAD KHALILUR REHMAN

1. This is a petition under section 491 read with section 561-A, Cr.P.C. filed by the petitioner against the respondent No.1 and 2 others, inter alia, stating therein that the petitioner was married to respondent No.1 on 10-4-1981. From the said wedlock of the petitioner and the respondent Nod two children namely (a) Master Owais-ur-Rehman and (b) Baby Aysha Rehman were born. It is alleged that the respondent No.1 made the life of the petitioner miserable through his cruel conduct, misbehaviour and improper maintenance with the result the respondent No.1 and the petitioner have been living separately; since 1983. It is the case of the petitioner that custody of both the minor children had-been with her but in the third week of September 1983 the respondent No.1 took the petitioner alongwith both the children from Karachi to Hyderabad for meeting with his relations but there the respondent No.1 forcibly snatched minor Ayesha Rehman and sent back the petitioner alongwith minor Master Owaisur Rehman to Karachi and thereby the respondent No.1 forcibly and illegally removed minor Baby Ayesha Rehman from the custody of the petitioner and illegally and unlawfully left Baby Ayesha Rehman with the respondent No.2 who is the brother of the respondent No.1 against the wishes of the minor and the petitioner. The petitioner approached various authorities for return of the minor Baby Ayesha but all efforts were in vain. Ultimately the petitioner filed an application under section 25 of the Guardians and Wards Act, 1890 for recovery of custody of the minor Baby Ayesha. The same was pending adjudication in the Court of 1st Senior Civil Judge, Karachi Central.

2. The respondent No.1 filed application for suspension of order dated 3-9-1991 stating therein that on 19-9-1983 the petitioner herself voluntarily left the Baby Ayesha Rehman at the house of respondent No.2 in Hyderabad on the pretext of her inability to carry on the service and look after the children together. The respondent No.1 contended that the above petition is untenable in law.

3. I have heard Mr. Ghulam Rabbani, learned counsel appearing for the petitioner, Mr. Gharib Nawaz Daccawala, learned counsel appearing for respondents Nos. 1 and 2, Mr. Zaheer Qureshi, learned counsel for the State. I have considered the submissions of the learned counsel carefully and have gone through the decisions cited at the Bar.

4. In Mst. Gullan v. Allah Ditta 1984 P Cr. L J 1047 it was observed as follows:--

5. "It is manifest that the custody with the respondent as obtained, of his daughter was in a manner which illegal. Whether or not a person is entitled to the custody is a matter which can be determined by the Family Court but in the circumstances, when the custody is illegal it is competent for us to exercise jurisdiction under section 491, Cr.P.C."

6. In Sakina Bibi v. Haji Muhammad Aslam 1987 P Cr. L J 377, wherein the minor was snatched away from the detenue woman at the time of her recovery by the bailiff of the Court, it was observed as under:--

7. " .... this Court, as a Court of Record and patria postestas over minors, has a power of directing the delivery of a minor child into the custody of his mother, where such minor child has been snatched away from her lawful custody."

8. In Fauzia Jamil v. Syed Farhat Hussain Shah Bokhari 1989 P Cr. L J 1736 it was observed that:--

9. "Ordinarily, disputes as to guardianship should be decided by a Court under the Guardians and Wards Act as that is the ordinary remedy for deciding such disputes but in exceptional cases of which the present is a clear example, the High Court can interfere to order restoration of the custody which had been disturbed illegally or improperly."

10. In Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342, it was observed by this Court that:--

11. "...in matters pertaining to the custody of minors of tender age the High Court has got jurisdiction under section 491, Cr.P.C., which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by Guardian Judge."

12. It was further observed that:--

13. ".... the matters to be dealt with by section 491, Cr.P.C. and Guardians and Wards Act, 1890 are entirely different and the provisions are neither mutually exclusive nor one overlaps or destroys the other 1988 S C M R 1891. Ordinarily the disputes as to guardianship should be decided by a Court under the Guardians and Wards Act, 1890, as that is the ordinary remedy for deciding such disputes, but in exceptional cases High Court can interfere to order restoration of custody which has been disturbed illegally or improperly."

14. In Muhammad Javed Umrao v. Miss Uzma Vahid 1988 S C M R 1891, it was observed by their Lordships of the Supreme Court as under:--

15. "The Guardians and Wards Act, as the title itself suggests, deals with the guardians, wards and the problems and questions relating to them. Section 7 relates to the appointment of a guardian by the Court and section 12 authorises the Court to make interlocutory order for protection of minor and interim protection of person and property. The two matters, one dealt with by section 491, Cr.P.C. and the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other or the one destroying the other. The law as it stands shows no such repugnancy."

16. It was further observed that:--

17. "Section 491, Cr.P.C. is ordinarily not available for declaring a guardian or for determining for all time the question of custody of the minor:"

18. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another 1989 M L D 2209 (Supreme Court of India), the respondent, a father had illegally taken away the child to India from the custody of the petitioner/mother who was living in U.S.A., the mother filed Habeas Corpus petition before the Supreme Court. It was observed as follows:--

19. "The child's presence in India is the result of an act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child to some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present."

20. In Shagufta Andleep v. Abdul Razzaq and another 1992 P Cr. L J 2168 it was observed that:--

(3) "Under section 491, Cr.P.C. the High Court is clothed with an extraordinary power to issue directions in the nature of habeas corpus. These proceedings by their nature are summary in character and the entire evidence is not recorded to decide the main controversy between the parties:"

21. It was further observed:-- "in matters pertaining to the custody of minors of tender age, the High Court has got jurisdiction under section 491, Cr.P.C. which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by Guardian Judge."

22. In Mst. Dilbar Jan v. Khan Muhammad 1992 P Cr. L J 683, it was observed that:-- "in the matters pertaining to the custody of minors of tender age, the High Court has got the jurisdiction under section 491, Cr.P.C., which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by the Guardian Judge."

23. In Mst. Zubaida Khatoon alias Aqleema Khatoon alias Parveen v. Saadullah A. Siddiqui and 4 others 1992 P Cr. L J 690, it was observed that:-- "if a minor is not being illegally or improperly confined or detained, Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is a major the only jurisdiction which Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not."

24. In Iffat Mir v. Mobeen Qasim Mir 1991 P Cr. L J 2372, it was observed as under:--

25. "Respondent no doubt is the natural guardian of the minor being his father but he cannot hold and retain his custody forcibly and against the wishes of the petitioner who in law is entitled to the custody of the minor or without obtaining proper orders for the custody of the minor from a Court of competent jurisdiction. It is not the case of the respondent that he has obtained any such order. In fact he has not even moved the Guardian Judge/Family Court for securing the custody of the minor Salman Mir though he is stated to have made an application under section 25 of the Guardians and Wards Act for the custody of the other child i.e. Zeeshan Mir. He is evidently holding the custody of the minor against the wishes of the petitioner. In the circumstances, his custody, prima facie, appears to be illegal."

26. It was further observed that:--

27. "Even if it be assumed for the sake of argument that the respondent's custody of the minor child was not illegal or improper, yet since the minor has been brought before this Court, he can be dealt with according to law under section 491(1)(a), Cr.P.C. which provides: Any High Court may, whenever it thinks fit, direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law."

28. In Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6, it was observed:--

29. "The High Court has two-fold jurisdiction under this section: (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person."

30. It was further observed:--

31. "If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not."

32. It is well-settled legal position that the matters to be dealt with by section 491, Cr.P.C. and Guardians and Wards Act, 1890 are entirely different and the provisions are neither mutually exclusive nor one overlaps or destroys the other. It is also well-settled that ordinarily the dispute as to guardianship should be decided by the Court under the Guardians and Wards Act, as that is the ordinary remedy for deciding such disputes, but in exceptional cases, High Court can interfere to order restoration of custody which has been disturbed illegally or improperly.

33. It is well-settled that according to the Muslim law, mother is entitled to the custody of a male minor child until he has completed the age of seven years while the mother is entitled to the custody of a minor girl until she has completed the age of puberty and the law presumes that the welfare of the minor lies in his/her living with the mother. Nothing has been brought on the present record to rebut this presumption. In the circumstances, since the minor has been brought before the Court and under section 491(1)(a), Cr.P.C. she has to be dealt with according to law, restoring her custody to her mother, the petitioner, which the law presumes to be in her interest, will be dealing with her in accordance with law. Thus, viewing from whatever angle i.e. whether the minor's custody is illegal and improper or not, it is competent for this Court to hand over the custody of the minor to the petitioner.

34. It has also come on record that the petitioner filed a petition under section 25 of the Guardians and Wards Act. This petition was allowed by the 1st Senior Civil Judge, Karachi Central on 10-5-1993 and directed the respondent. No.1 go to hand over the custody of the minor Baby Ayesha Rehman to the petitioner. The respondent No.1 filed application for setting aside the order, dated 10-5-1993 on the ground that it is ex parte. However, it is not set aside. The judgment is still in the field. In the facts and circumstances of the case, the custody is improper.

35. For the aforesaid reasons, this petition is allowed and the respondent No.1 is directed to hand over the custody of minor Baby Ayesha Rehman to the petitioner.

36. N.H.Q./S-1031/K Petition allowed.