MUHAMMAD NASEER HUMAYON Versus Mst. SYEDA UMMATUL KHABIR
This petition for leave to appeal challenged an order of the Lahore High Court issued in habeas corpus proceedings, which directed the petitioner (father) to hand over custody of his minor daughter, aged under four, to the respondent (mother). The petitioner argued that the High Court lacked jurisdiction to adjudicate custody disputes between spouses under Section 491 of the Code of Criminal Procedure 1898, relying on precedent suggesting such matters should be handled by a Guardian Judge. The High Court had distinguished the case based on the parties' marital status, noting they were no longer married. The Supreme Court declined to definitively rule on the jurisdictional question regarding the scope of habeas corpus in custody matters. Instead, the Court focused on the welfare of the minor, determining that it would be unfair to remove the child from the mother's custody at such a tender age while the parties were still entitled to seek a final determination from the Guardian Court. Consequently, the Supreme Court dismissed the petition, maintaining the status quo pending formal resolution by the appropriate forum.
- Can a High Court exercise jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to determine custody of a minor child?
- Is it appropriate for a High Court to grant interim custody of a minor in habeas corpus proceedings pending a final decision by a Guardian Judge?
- Section 491, Code of Criminal Procedure 1898
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from order dated 4-6--1986 of the Lahore High Court; whereby in Habeas Corpus proceedings a learned Single Judge of the High Court directed the handing over of the person of a minor daughter of less than 4 years of age by the petitioner (father) to the respondent (mother).
Learned counsel relying on Mst. Mariam Rozina v. Robert Ashraf 1985 P Cr. L J 1469 contended that the questions between spouses regarding custody of minor children should not be decided by the High Court under section 491, Cr.P.C. Thus, as argued, the impugned order is without jurisdiction. The learned Judge in the High Court while agreeing that ordinarily the questions of Hizanat cannot be adjudicated in the Habeas Corpus petition, distinguished the cited case by observing that the parties therein were wedded in a marriage union while in the present case they have become strangers on account of the dissolution of the marriage.
It is not necessary in the peculiar extraordinary circumstances of this case noted in the impugned order to decide the question of law raised by the learned counsel. The learned Judge in the High Court while entrusting the custody of the child observed "that the respondent or the petitioner, if so advised, may approach the Guardian Judge for determination of the final settlement of the custody of the child". This observation followed the remarks made by the learned Judge that apart from the welfare of the minor, the fact of husband having different faith will also have to be taken into account, when finally deciding the dispute about custody.
After hearing the learned counsel we feel that it would not be fair to the minor child at this tender age to snatch her from her mother when according to the impugned order itself the parties are yet to get the matter resolved through the Guardian Court.
Accordingly not finding it a fit case for grant of leave to appeal we dismiss this petition.
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