SMT. PARI BAI Versus AMRAT LAL

ORDER

1. The applicant is mother of five children and the respondent Amrat Lal is father of children. He has produced children in Court. The children are with their father since last three months. None of the children is major. They are all minors. Learned counsel for the applicant requested that the custody of the children may be transferred to applicant. He has relied on decision reported in 1996 SCMR 268. This is a decision of honourable Supreme Court.

2. The children are admittedly with their father respondent No. l Amrat Lal since last three months. The petitioner did not approach the Guardianship Court but instead has filed an application under section 491, Cr.P.C. The provisions of section 491, Cr.P.C. are as under:--

3. "491. Power to issue directions of the nature of habeas co us. -- (1) 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;

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

(c) that prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners, respectively;

(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f) that the body of a defendant within such limits be brought in on the Shariff's return of cepi corpus to a writ of attachment.

(2) The High Court may, from time to time, frame rules to regulate the procedure in case under this section.

(3) Nothing in this section applies to persons detained under any law providing for preventive detention."

4. None of these provisions empowers me to transfer the custody of the minors. Learned Advocate for the applicant has relied on decision reported in 1996 SCMR 268. Their Lordships have been pleased to mention as under:--

5. "In view of the above observations, it is quite clear that in appropriate cases the Court under section 491, Cr.P.C. if it reaches the conclusion that a minor has been illegally removed from the custody of a person who was holding his custody lawfully, the Court is empowered under section 491, Cr.P.C. notwithstanding the provisions of Guardians and Wards Act to pass appropriate orders. We are, therefore, of the view that the jurisdiction of the Criminal Court is not barred under section 491, Cr.P.C. to pass appropriate order with regard to custody of a minor who has been illegally removed from the custody of a person on account of the provisions of Guardians and Wards Act. "

6. In this case there are five minors and they have been residing with their father for last three months. The respondent Amrat Lal does not want to hand over the custody of the minors to the petitioner. As the welfare of the minors is involved, the petitioner may approach Guardianship Court for interim custody of the minors and also for final custody of the minors. Children have been produced in Court by the respondent and the petitioner has met her children. This obviously shows that children are not in wrongful confinement. Petitioner may approach the Guardianship Court for custody of minors. The present Criminal Miscellaneous Application No. 137 of 1996 is, therefore, rejected.

7. N.H.Q./P-21/K Petition dismissed