FAUZIA JAMIL vs Syed FARHAT HUSSAIN SHAH BOKHARI and another

ORDER

' This petition under section 491, Cr.P.C. Is in the nature of habeas corpus seeking restoration of the custody of a minor child. Mst. Fouzia Jamil was married to Syed Farhat Hussain Shah Bokhari respondent No,1, on 2-5-1985. From this marriage, two sons, namely Shah Rukh and Shah Zeb were born to them. Shah Zeb who was younger died on 12-6-1988. On 19-2-1989, respondent No,1 gave divorce to the petitioner but a formal deed giving effect to it was executed on 4-2-1989. It is signed by the petitioner, respondent No,1, and their two other close relations.

2. It is stated in the petition that on 19-2-1989, respondent snatched Shah Rukh from her to retain his custody illegally. It is contended that in view of extremely tender age of the minor boy, petitioner is entitled to immediate restoration of his custody. As against this, it is argued that the petitioner had consented to the custody of the minor to be with his father. Correctness of this statement is denied by the petitioner.

3. Facts are not disputed. Shah Rukh was born on 22-7-1986. Till 19-2-1989, petitioner and respondent No,1 lived together as husband and wife and the minor boy was in their joint custody.

On the date of divorce i,e, 19-2-1989, minor boy was shown to have been snatched away by respondent No,1. Under para. 352 of the Principles of Mahomedan Law by Mulla, mother is entitled to the custody of a male child until he has completed the age of seven years, where after, subject to the rule of his welfare, it is transferred to the father. In the present case, age of the minor is less than three years. In view of his tender age and requirements, father cannot prove to be a proper substitute for the love and affection which a real mother can bestow upon him. Ordinarily, disputes as to guardianship should be decided by a Court under the Guardians and Wards Act as that is the ordinary remedy for deciding such disputes but in exceptional cases of which the present is a clear example, the High Court can interfere to order restoration of the custody which had been disturbed illegally or improperly. Respondent No,1 is employed as U.D.C. In the office of Divisional Superintendent Railways, at Rawalpindi. .H is mother stated to be of 55 years of age, cannot favorably compete with the real mother in the matter of rearing up of the minor child. In view of the tender age, proper place for the minor is the lap of his real mother. Consequently, she is entitled to the restoration of the custody till the dispute as to the welfare is decided by the Guardian Court. In this view, petition is allowed and Shah Rukh minor is handed over to the petitioner. If so advised, parties may approach the Guardian Judge for determination of the final settlement of their right to the custody of the minor child. With these observations, this petition is disposed of.