Mst. ANAM KHANZADA Versus DEPUTY INSPECTOR-GENERAL OF POLICE, HYDERABAD REGION, HYDERABAD
ORDER
ZAFAR AHMED KHAN RAJPUT, J.--- Through instant criminal miscellaneous application, the applicant seeks issuance of Rule Nisi, direction to respondents Nos.1 to 5 to conduct raid at the house of respondent No.6 namely Saeed Ahmed Khanzada, the husband of the applicant, to recover the alleged detainees namely, Zakir Hussain Khanzada, aged about 10 years, Abdul Qadir Khanzada, aged about 07 years and Muhammad Salar aged about 05 years and their production before this Court and handing over their custody to applicant being their real mother.
2. Learned counsel for the applicant states that the applicant married to respondent No.6 on 04.04.2008 and thereafter she resided at Nasarpur with him; that during the aforesaid wedlock, the applicant given birth to the above named three minor children, however, the conduct of respondent No.6 was not as proper as should be of a husband with his wife and about two months before filing of instant application, he expelled the applicant on demanding maintenance for herself and for her children and as a result thereof, she shifted to house of her father situated at Latifabad, Hyderabad. He further states that about 15 to 20 days before filing of instant application, the respondent No.6 came to the house of applicant and removed the custody of minors on the pretext that he would take them to Bazzar for the purpose of shopping.
3. Today, the respondent No.6 through statement files three certificates issued by Principal, Bright Future Elementary School, Nasarpur to the effect that minor Zakir Hussain, Abdul Qadir and Muhammad Salar are studying in said School since 10.04.2015, 01.04.2017 and 12.04.2017 respectively. When this fact was confronted, counsel for the applicant while relying upon the case of 'Mst. Samina v. Ashfaque Hussain and another' reported in 2000 MLD 351 maintains that irrespective of the fact that the children are studying in School situated in Nasarpur, the applicant being mother of minors of tender age, is entitled to their custody.
4. There is no hard and fast rule that while invoking provisions of section 491, Cr.P.C. the mother is always entitled to the custody of minors but each case has to be decided keeping in view its own facts and circumstances. The essential question for invoking provisions under section 491, Cr.P.C. is to show that the custody of the minors with the second party is illegal or that the minors were illegally removed from the custody of the applicant. I am afraid, the contention of learned counsel for the applicant is not correct in the prospective of the matter in hand. In the cited case [supra], the custody of minors having tender age was ordered to be handed over to mother by this Court as the custody of the minors was removed for her custody by their father in unlawful and mala fide manner. In the present case, the applicant has failed to establish her case on such ground, on the contrary, admission on the part of the applicant that the minors have been studying in School at Nasarpur from the date of their admission, mentioned above, is sufficient evidence that their custody was with respondent No.6 even during the period when the applicant was allegedly compelled to leave the house.
5. The respondent No.6 is the natural guardian of the minors being father, the custody of the minors with him cannot be termed as illegal. Accordingly, the instant criminal miscellaneous application is dismissed. However, the applicant is left at liberty to file application under section 25 of Guardians and Wards Act, 1890 before the concerned Court of Guardians and Wards, who shall decide the same in accordance with law without being influenced by the order of this Court.
SA/A-52/Sindh Application dismissed.