NAJMA SADEQUE RASOOL vs MUNIRA HAMID RASUL AND Anoth3rs
This criminal petition was filed under Section 491 of the Code of Criminal Procedure 1898 seeking the custody of a child. The core legal question was whether the High Court has jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to entertain a petition for child custody in light of the West Pakistan Family Courts Act 1964. The Sindh High Court held that Section 5 of the West Pakistan Family Courts Act 1964, read with its Schedule, vests exclusive jurisdiction over matters of child custody in the Family Courts. Relying on Supreme Court precedent, the Court ruled that since the Family Courts possess exclusive jurisdiction, a petition under Section 491 of the Code of Criminal Procedure 1898 is not maintainable. Consequently, the petition was dismissed, and the petitioner was directed to approach the appropriate Family Court for remedy.
- Does the High Court have jurisdiction under Section 491 of the Code of Criminal Procedure 1898 to adjudicate child custody matters after the enactment of the West Pakistan Family Courts Act 1964?
- Whether the jurisdiction of Family Courts over matters specified in the Schedule of the West Pakistan Family Courts Act 1964 is exclusive in nature?
- What is the proper forum for a petitioner seeking the custody of a child under West Pakistani family law?
- Section 491, Code of Criminal Procedure 1898
- Section 5, West Pakistan Family Courts Act 1964
IMDADALLY H. AGHA, J.-This is a criminal petition under section 491 of the Code of Criminal Procedure. It came up today for hearing after it was admitted to regular hearing earlier. But today no one appeared on behalf of the petitioner nor the petitioner herself is present. However, the learned Advocate----General who was given a notice to appear in this case has appeared and counsel for the respondents Mr. Shaikh Mir Muhammad has also appeared.
The learned Advocate-General has invited my attention to section 5 of the West Pakistan Family Courts Act, 1964 which is as follows "5. Jurisdiction: Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."
3. It will be noticed that this section gives exclusive jurisdic--tion to Family Courts for those matters which are specified in the Schedule to the Act. The Schedule of the Act speaks of custody of children, therefore, the Family Courts have special an exclusive jurisdiction to deal with the matter concerning the custody of children. The present petition is also concerning the custody of a child.
The learned Advocate-General has cited in support of his argument a case of Adnan Afzal v.
Captain Sher Afzal (PLD 1969 S 0 187), wherein it has been held that as from the 5th of April 1966, when Judges of the Family Courts became vested with powers of Magistrate of First Class, the only Court which has jurisdiction to entertain, bear and adjudicate upon the matter specified in the Schedule was the Family Court. This decision of~ the Supreme Court clinches the whole issue, therefore in this matter the present petition under section 491, Cr. P. C. Does not lie as the remedy of the petitioner is to approach the Family Court for the purpose of obtaining custody of the child concerned.
4. As the petition under section 491, Cr. P. C is not competent in this Court, therefore, I dismiss it as being not maintainable.
Cited by 10 cases
- Mst. MARIA KHAN vs MUHAMMAD ZUBAIR KHAN 1993 P Cr. L J 1097
- Mst. AASIA vs MASHHUD AHMED and another 1990 P Cr. L J 847
- MUSSARAT JABEEN vs Dr. KHALID NAWAB and another 1990 P Cr. L J 686
- Mst. TAUQIR FATIMA vs IQBAL MEHDI SHAH and another 1990 P Cr. L J 342
- 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
- Mst. NASIM MAI vs SHAHADA T 1984 MLD 1507
- BEGUM GULZAR KHURSHID AHMAD vs CDR. SAJJAD AKBAR 1977 P Cr. L J 800
- MUHAMMAD AZAM vs MUHAMMAD IQBAL AND OTHERS 1984 PLD Supreme Court 95
- MUHAMMAD AZAM Versus MUHAMMAD IQBAL 1984 PLD 95