Mst. MARYAM MUHAMMAD ALI Versus GOVERNMENT OF SINDH

ORDER

HASSAN FEROZ, J.--- Pursuant to the production order for production of the detenue suckling minor Ahsan Ali aged five months before this Court dated 26.05.2014 the respondents along with minor appeared before this Court on 09.06.2014, on which date the matter was heard at length. It has been contended by Mr. Qadir Hussain Khan that the petitioner being mother of five months old suckling Master Ahsan Ali who has been illegally and improperly detained by the respondents seeks custody of the minor being mother and natural guardian having right of Hizanat. It has been contended that the petitioner was ousted from the house of respondent in the wearing apparel and the minor, Ahsan Ali was snatched from her lap. Mr. Qadir Hussain Khan, relied upon 1992 MLD1460 (Mst. Haseena v. Mst. Mini and another) and contended that Court has ample powers under Section 491 Cr.P.C. in the matter pertaining to the custody of minor being efficacious, speedy and appropriate remedy is to be exercised by this Court. Learned counsel has relied upon 1996 SCMR 1907 and contended that the mother has been illegally deprived custody of minor and she has rightly invoked powers of this Court under Section 491 Cr.P,C. seeking the custody of minor. Learned counsel has relied on 1994 MLD 1682 (Hiroku Muhammad v. Muhammad Latif) and contended that even if the father. has approached the guardian Court this Court has power to restore the custody to the petitioner. Mr. Qadir Hussain Khan has further relied upon 1999 CLC 1202 Lah. ( Aya Sasaki v. Zarina Akhtar ) and contended that mother can give her love, affection and care being comparatively more tender and passionate her claim to have custody was accepted under the Islamic law and got first right of custody of minor. Learned counsel has relied upon NLR 2004 Civil 19 (Mst. Zubaida v. Mst. Rabia, etc.) . It has been contended by Mr. Qadir Hussain Khan that since the mother has been ousted from the house of the husband and her suckling son has been snatched from her lap, she has preferential right to have custody of the minor under Section 491, Cr.P.C. and any pending proceedings in the Family Court and G&W Court would not come in the way of immediate, efficacious remedy as five months old child could not be brought up in better condition than the lap of the mother and further contended that under the Islamic injunction the right of Hizanat would prevail in favour of mother who is entitled to take custody of her suckling baby.

2. On the other hand Barrister Farruk Zia Shaikh, learned counsel for respondent father strongly contended that the child is being kept properly by the father and grandmother with every love and affection and the moment the child is delivered to the custody of petitioner they will remove the child from the jurisdiction of this Court and will take him to Jhelum as the father of the petitioner who is retired soldier of Pakistan Army resides in Jhelum. In support of his contention, learned counsel has relied upon PLD 2012 SC 758 (Mst. Nadia Perveen v. Mst. Almas Noreen and others) and contended that exercise of powers under Section 491, Cr.P.C. for the recovery of minor is to be exercised, sparingly and such exercise may be undertaken only in exceptional and extraordinary cases of real urgency keeping in view the well being of child and that even a Guardian Judge has the requisite powers of recovery of minors and regulating their interim custody and since the petitioner mother has left the child on her own therefore, it would not be said that the child was illegally detained by the respondent.

3. Mr. Qadir Hussain Khan has strongly rebutted the contention of learned counsel for the respondents that under the circumstances,:whereby the petitioner has herself be kept in agony and humiliating condition and child has been snatched from her reflects matter of extraordinary circumstances wherein the petitioner seeks the custody and is willing to furnish security whenever child is taken out of jurisdiction of this Court, she will inform the Court and that under all circumstances she will provide access to the respondent father and the family member of the respondents to visit and meet with child and if she had to go to her hometown Jhelum she will provide her address to the Court and that she will not hide the child in concealment to the eyes of respondents and has offered to keep the child properly.

4. This matter was adjourned for orders for today and since morning till this hour of 1-00 p.m. no one has turned up from the side of respondents and also no intimation has been received from the side of learned counsel.

5. I have in my consideration that the mother having right of Hizanat who is petitioner before this Court is seeking relief under section 491, Cr.P.C. I have in my consideration the material available on record and the citations relied upon by both the sides, I am of the fortified view that suckling baby of 5 months cannot be left in the hands of father and grandmother in presence of lap of mother as there could not be any substitute for the lap of mother who claims the custody of the minor Master Ahsan Ali. I have in my view the contention raised by respondents that the child is ill and that he could not be brought up by the mother as her father resides in Jhelum. I have also in my view that since the father is a retired soldier of Pakistan Army who can avail the medical facilities of Military Hospital any where in Pakistan for himself or for his family and even for the child on expenses to be incurred by him from any Military Hospital and then on sole ground of comparative poverty of the petitioner vis-a-vis well being of husband she cannot be denied the right to keep the child with herself.

6. Under the above circumstances, it would be appropriate to grant this petition with direction to the office to issue Rule Nisi for the recovery of Master Ahsan Ali from the custody of respondents and deliver him through police to the petitioner. The respondent is directed to deliver custody of the child to the mother petitioner. Petitioner is directed to furnish indemnity bond to the effect that she will keep child in proper condition, health care and she will not remove the child from the jurisdiction of this Court without informing the Nazir of this Court and the respondents will have the right to meet with the child after intimating Nazir in his office who will issue notice to the petitioner who is hereby bound down to brought the child for the purpose of meeting with the respondents. The custody of the minor shall live with the petitioner.

In view of above directions, petition is allowed.

ZC/M-21/Sindh Petition allowed.