Mst. NAUSHABAH TABASSAM vs GHULAM MADNI SHAH
This matter concerns a petition filed under Section 491 of the Code of Criminal Procedure 1898, seeking the recovery and custody of two minor daughters, Kiran Hashmi and Nida Hashmi, allegedly detained illegally by their father, Ghulam Madni Shah. The petitioner, the mother, contended that the respondent had forcibly removed the minors from her custody while she was incapacitated following childbirth, after having previously expelled her from the marital home. The core legal question was whether the summary procedure under Section 491, Code of Criminal Procedure 1898, could be invoked to restore the custody of minors to the mother when the father had removed them without lawful authority. The Court held that, prima facie, the respondent had not obtained custody of the children in a lawful manner. Consequently, the Court ordered the immediate restoration of the minors' custody to the petitioner. The key principle laid down is that while the High Court may exercise its jurisdiction under Section 491 to recover minors from illegal detention, such an order is interim and does not preclude parties from seeking a final determination of custody rights before a competent Family Court.
- Can the High Court exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to restore the custody of minors to a parent?
- Does an order for the recovery of minors under Section 491 of the Code of Criminal Procedure 1898 preclude parties from seeking custody through a Family Court?
- Section 491, Code of Criminal Procedure 1898
ORDER
1. Mst. Naushabah Tabassum petitioner has moved this petition under section 491, Cr.P.C. Praying that her minor daughters, namely, Kiran Hashmi and Nida Hashmi, who are being illegally detained by their father Ghulam Madni, be got recovered and their custody be handed over to her. Her case is that the respondent had been consistently maltreating her and in February, 1968 he turned her out when she was in family way and she started living in the house of her parents. The respondents got annoyed and took away both the minors, namely, Kiran Hashmi aged five years and Nida Hashmi aged four years, without her consent, when she was confined to bed due to the delivery of a child.
2. On inquiry, the respondent states that he took away both the minors from the house of the petitioner about twenty days back and prior to that they were with their mother for six', months and were studying in Saint Joseph School. Prima facie, there is substance in the submission that the respondent had not taken the custody of the children in a lawful manner. In the circumstances, the custody of both the minors is handed over to the petitioner. This is, however, without prejudice to the rights of the parties to have resort to the Family Court for their custody.
Cited by 7 cases
- FAUZIA MALIK vs SANAULLAH and another 2004 PLD Karachi 488
- Mst. NOOR JEHAN vs ZAHID ALI and another 1999 YLR 2290
- Mst. SARWAR KALHORO vs MUKHTIAR ALI KALHORO 1999 P Cr. L J 1711
- MUHAMMAD ISMAIL and 2 others vs THE STATE and anothers 1999 P Cr. L J 1708
- Mst. ZENIA vs AHMED JAWAD SARWAR 1994 PLD Lahore 577
- Mst. TAYYABA KHAN vs SYEDA BEGUM and anothers 1994 PLD Karachi 204
- SHABBIR HUSSAIN vs Mst. SHAHNAZ PARVEEN and another 1989 P Cr. L J 1689