SHAH NAWAZ KHAN AND Others vs Mst. SHAHIDA PARVEEN AND Other
This petition for special leave to appeal arose from a revisional order of the Lahore High Court, which upheld a Guardian Judge's decision granting interim custody of an eight-month-old infant to his mother. The dispute involved the father and paternal grandmother (petitioners) and the mother (respondent), who was living apart from her husband. The core legal question was whether the interim custody of a suckling infant should be granted to the mother pending the final determination of a custody application under the Guardians and Wards Act, 1890. The petitioners argued that the father, as the natural guardian, was entitled to the hizanat of the child. The Supreme Court held that given the infant's tender age, there was no justification to interfere with the High Court's order maintaining the interim custody arrangement. The Court emphasized that the final determination of custody rights would be resolved in the substantive proceedings under section 25 of the Act, and thus dismissed the petition, prioritizing the immediate welfare of the suckling infant.
- Can a court grant interim custody of a suckling infant to the mother pending final adjudication of a custody application?
- Does the father's status as a natural guardian automatically entitle him to the immediate custody of an infant against the mother's claim for interim custody?
- Section 12, Guardians and Wards Act 1890
- Section 25, Guardians and Wards Act 1890
- Section 491, Code of Criminal Procedure 1898
1. MUHAMMAD GUL, J.-This petition for special leave is from the revisional order of a learned Single Judge of the Lahore High Court maintaining that of Guardian Judge under section 12 of the Guardians and Wards Act, 1890, entrusting the custody ad interim of an infant Kashif--ur-Rehman aged about eight months, to his mother Mst. Shahida Parveen, respondent No. 1, in an application made by her, under section 25 of the Act for the custody of the minor.
2. The petitioners 1 and 2 herein who were respondents before the Guardian Judge, respectively are father and paternal grandmother of the infant. It appears that respondent No. 1 because of estrangement with her husband petitioner No. 1, is living with her mother and step-father (respondents Nos. 2 and 3 herein). Petitioner No. 1 moved a petition in the High Court habeas corpus under section 491, Cr. P. C. For the release of his wife (respondent No. 1) and his infant son from the illegal custody of respondents Nos. 2 and 3 (her mother and step-father). Respondent No. 1 appeared before the learned Single Judge to repudiate the allegation about her illegal custody by her mother and step-father, The learned Single Judge therefore rejected the application for habeas corpus so far it concerned petitioner No. 1 but directed that the custody of the infant be given to petitioner No. 1. The learned Judge, however observed that the respondent No. 1, if she so desired, could move the Guardian Judge for the custody of the infant. The order is dated the 25th November 1972.
3. Pursuant to the above observation respondent No. 1 moved the Guardian Judge on 8-12-1972 under section 25 of the Guardians and Wards Act for the custody of the infant. She also applied under section 12 for the interim custody on the ground that the infant was a suckling and unless his custody was immediately transferred to her his life would be in danger. The Guardian Judge allowed the prayer against which the petitioners herein moved a revision in the High Court which was dismissed vide dated 28-3-1973.
4. Learned counsel for the petitioner submits in support of this leave petition, that the petitioner No. 1 being the father was natural guardian of the infant and therefore was entitled in law to hizanat of the infant even against his mother unless he is found to be disqualified in any respect, It was also submitted that the petitioner No. 2, who is maternal grandmother of the infant and who had developed an intense fondness for the infant, will be able to look after the infant.
5. Having regard to the tender age of the infant, we consider there is no reason to interfere with the order of the High Court maintaining that of the Guardian Judge,, for the interim custody of the infant more so when the main matter is to be decided under section 25 of the Act. The petition is accordingly dismissed.
Cited by 1 case
- MUHAMMAD NOMAN MALIK vs Mst. RUKHSANA NOMAN AND 2 OTHERS 1983 CLC 2846