Mst. GULLAN vs ALLAH DITTARespon dent
The petitioner filed an application alleging that the respondent had forcibly taken her minor daughter, Bilquis, from her custody. Upon the production of the minor in court, she expressed a clear desire to live with her mother and testified that she had been forcibly removed by the respondent with police assistance. The core legal question was whether the High Court could exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to restore custody when a minor has been removed through illegal means, despite the existence of Family Courts for custody disputes. The Court held that when custody is obtained in an illegal and improper manner without recourse to due process, the High Court is competent to intervene under its habeas corpus jurisdiction to restore the minor to the petitioner. The principle laid down is that while the ultimate determination of permanent custody rights remains the domain of the Family Court, the High Court may exercise its jurisdiction to rectify illegal detention and restore the status quo ante pending formal legal proceedings.
- Can the High Court exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to restore a minor to a parent when the minor was forcibly removed?
- Does the existence of Family Courts preclude the High Court from intervening in cases of illegal detention of a minor?
- Is the restoration of a minor to a parent by the High Court under Section 491, Code of Criminal Procedure 1898, considered a final adjudication of permanent custody rights?
- Section 491, Code of Criminal Procedure 1898
ORDER
' The petitioner moved this application alleging that respondent No, / with the help of respondent No, 2 took away forcibly from her custody Bilquis, aged about 7 or 8 years. 1, by my order, dated the 15th of January 1974, directed that notice should issue to Allah Ditta respondent for the 29th of January, 1975.
2. Respondent Allah Ditta is present and Bilquis has also been produced by Muhammad Yusouf Assistant Sub-Inspector Police Station Kamalia, Mr. A. S. Najam, Assistant Advocate-General was present in the Court. With his help I questioned Mst. Bilquis. She started crying and stated that she wanted to live with her mother and that she had been taken away forcibly by the respondent with the help of Tbanedar. It is manifest that the custody with the respondent, as obtained, of his daughter was in a manner which was 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. Since Mst. Bilquis, the alle2a1 detenu, had been taken away in improper manner without having recourse to the law the custody of the respondent shall be illegal action. She should be handed over to the mother, the petitioner. However, this will be without prejudice to the right of the parties to resort to the Family Court for the custody of the minor. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.
Cited by 10 cases
- Mst. GHULAM FATIMA vs THE STATE and 2 otherss 2006 YLR 105
- NOOR SAFIA Versus S.P., SIALKOT 1997 PCRLJ 84
- SHABANA NIAZI Versus MUHAMMAD KHALILUR REHMAN 1994 PCRLJ 715
- (Mst.) NASIM AKHTAR vs Qazi MUHAMMAD ZUBAIR 1992 MLD 70
- IFFAT MIR vs MOBEEN QASIM MIR 1991 P Cr. L J 2372
- Mst. SHAMSHAD BEGUM vs MUHAMMAD SAAD BIN MOGHANI and another 1989 P Cr. L J 1327
- MUHAMMAD JAVED UMRAO Versus MISS UZMA VAHID 1988 SCMR 1891
- UZMA VAHID Versus MUHAMMAD JAVED UMRAO 1988 PCRLJ 1883
- ASIF MOWJEE vs Mst. FATEMA A. MOWJEE AND ANOTHER 1987 PLD Karachi 239
- Mst. RIZWANA BOKHARI vs ABDUL MAJEED SHAH and another 1984 P Cr. L J 2582