Mst. BENISH Versus ASIF alias ATIF KHAN
ORDER
KHADIM HUSSAIN M. SHAIKH, J.--- It is inter alia contended by the learned counsel for applicant that applicant Mst. Benish was married with respondent No.1 Asif alias Atif Khan on 06.4.2014 and out of such wedlock alleged detenue Abu Hurera, who is aged of one year and is a suckling boy was born, that on 06.12.2015 at about 1.30 p.m. while applicant Mst. Benish along with her minor son, the alleged detenue Abu Hurera, were available in her parents' house when respondent No.1 along with some unknown persons by entering the house of applicant's parents forcibly snatched away minor Abu Hurera from the custody of the applicant, that custody of minor Abu Hurera with respondent 'No.1 Asif alias Atif Khan is badly affecting health of minor Abu Hurera. Learned counsel for the applicant, therefore, requests that custody of minor Abu Hurera may be given to applicant Mst. Benish, who is, his real mother.
2. Learned counsel for respondent No.1 has contended that applicant Mst. Benish has no source of income and there is also no earning male member in the family of applicant's parents, therefore, welfare of the minor Abu Hurera would be affected, if the custody of minor Abu Hurera is given to the applicant.
3. I have considered the arguments advanced by the learned counsel for the parties.
4. On a query, the respondent No.1 Asif alias Atif Khan who is present in person, states that he is a Tailor-master and his normal routine working hours are from 9.00 a.m. to 9.00 p.m. i.e 12-hours.
5. Admittedly minor Abu Hurera is aged of one year and is a suckling boy. I am of the view that the custody of minor Abu Hurera of such tender age of one year and that too when he is suckling boy, needing constant care of his mother, with respondent No.1 Asif alias Atif Khan is manifestly improper and the Hon'ble Superior Courts of Pakistan in such cases handed over the custody of minors from their fathers to mothers. Reference can be made to the case of Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir reported as 1987 SCMR 174 and case of Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another , reported as PLD 2004 SC 1. In case of Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir , (supra) High Court's order passed in habeas corpus proceedings under section 491, Cr.P.C. directing the father to hand over the minor girl to mother, was up held by the Honourable Supreme Court of Pakistan and in case of Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (supra) the impugned judgment of the High Court Lahore dismissing the application under section 491, Cr.P.C. and declining the custody of minor child namely Hina Sultan alias Umm-i-Romaanh from her father Muhammad Sultan Mehmood to her mother namely Mst. Khalida Perveen was set-aside and the custody of minor was handed over to the petitioner Mst. Khalida Perveen. The contention of learned counsel for respondent No.1 Asif alias Atif Khan that the welfare of the minor Abu Hurera would be affected in giving his custody to the applicant, being a question of fact relating to guardianship, can only be decided after leading evidence before the competent Court of jurisdiction i.e the Guardian Court under the provisions of Guardians and Wards Act (VIII of 1890). Accordingly the instant application is allowed and the custody of minor Abu Hurera is handed over to applicant Mst. Benish, who is present in Court. However, respondent No.1 Asif alias Atif Khan shall be at liberty to avail remedy before the Guardian Court by filing appropriate proceedings and establishing his claim for the custody of minor Abu Hurera before Guardian Court and if such proceedings initiated the same shall be decided expeditiously in accordance with law and merits of the case without being influenced by the observations made herein above in this order. At this stage the learned counsel for respondent No.1 requests that meeting between respondent No.1 Asif alias Atif Khan and minor Abu Hurera may be allowed on 2nd and 4th Monday of each Calendar month for two hours. On query learned counsel for the parties state that marriage of the parties still subsists. Thus request of learned counsel for respondent No.1 regarding the meeting of respondent No.1 with his son minor Abu Hurera having force, is allowed. The respondent No.1 Asif alias Atif Khan is allowed to visit and see his minor son Abu Hurera twice a month on 2nd and 4th Monday of each calendar month from 11.00 a.m. to 1.00 p.m. at the applicant's parents' house.
HBT/B-3/Sindh Application allowed.