SHAGUFTA ANDLEEP vs ABDUL RAZZAQ And Another

This application filed under section 491, Cr.P.C. Involves a question of considerable importance in respect of improper detention of a minor by her father who is also her natural guardian.

2. The marriage between Mst. Shagufta Andleeb, the applicant and Abdul Razzaq; the respondent No.1, took place on 17-6-1988. There are two issues out of this wedlock, one son and a daughter by name, Schar, aged about 2-1/2 years. The relations of the parties were, however, strained and it is alleged that they were leading a cat and dog life. The applicant, therefore, took refuge in the house of her mother situated within the jurisdiction of Jamshed Quarters Police Station alongwith her minor children. It is alleged that on 18-1-1992, the respondent No.1 came to the house of the mother of applicant and forcibly removed his daughter Sehar, aged about 2-1/2 years born out of this wedlock. The applicant reported the matter at Jamshed Quarter Police Station but with no result.

Having no other efficacious remedy, the applicant has approached this Court for the recovery of her daughter Sehar aged about 2-1/2 years from the wrongful custody of her father Abdul Razzaq, the respondent No.1. On 18-2-1992 the respondent No.1 produced Sehar in Court and she was handed over to applicant as an interim measure.

3. Under section 491, Cr.P.C. The High Court is clothed with an extraordinary power to issue directions in the nature of habeas corpus. These proceedings by their nature are summary in character and the entire evidence is not recorded to decide the main controversy between the parties. As observed in Begum Gulzar v. Sajjad Akbar, reported in 1977 P Cr. L J 800, Muhammad Naseer Humayun v. Mst. Sayeda Ummatul Khabii reported in 1987 SCMR 174, Asif Mowjee v. Mst.

Fatima A. Mowjee and another reported in P L ,D 1987 Kar. 239, Rana Khursheed Ahmed v. Ashiq risaldar and another reported in 1988 P Cr. L J 1111, Uzma Wahid v. Muhammad Javed Umrao reported in 1988 P Cr. L J 1883, Muhammad Javed Umrao v. Mst. Uzma Wahid reported in 1988 SCMR 1891, Shabbir Hussain v. Mst. Shaheen Perveen and another reported in 1989 P, Cr. L J 1689, Fouzia Jamil v. Syed Farhat Hussain Shah reported in 1989 P Cr. L J 1736, Mst. Touqir Fatima v. Iqbal Mehdi Shah and another reported in 1990 P Cr. L J 342, Musarrat Jabeen v. Dr. Khalid Nawab and another reported in 1990 P Cr. L J 686, Mst. Aasia v. Mashhud Ahmad and another reported in 1990 P Cr. L J 847, Mst. Awal Marjan v. Mst. Gul Jan reported in 1991 P Cr. L J 717, Mst. Farzana v. Syed Muhammad Afzal and another reported in 1991 P Cr. L J 758 and Iffat Mir v. Mobeen Qasim Mir reported in 1991 P Cr. L J 2372, that in matters pertaining to the custody of minors of tender age, the High Court has got jurisdiction under section 491, Cr.P.C. Which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by Guardian Judge.

4. It will be manifestly clear that the matters to be dealt with by section 491, Cr.P.C. And Guardians and Wards Act, 1890, are entirely different and the provisions are neither mutually exclusive nor one overlaps or destroys the other (see Muhammad Javed Umrao v. Mst. Uzma Wahid reported in 1988 SCMR 1891). Ordinarily the disputes as to guardianship should be decided by a Court under the Guardians and Wards Act, 1890, as that is the ordinary remedy for deciding such disputes, but in exceptional cases the High Court can interfere to order restoration of custody which has been disturbed illegally or improperly.

5. As observed in Muhammad Rafique v. Muhammad Ghafoor reported in PLD 1972 SC 6, the High Court has two-fold jurisdiction under section 491, Cr.P.C. (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination; however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public of private custody or not.

6. Admittedly Baby Sehar is about 2-1/2 years old. Her custody was obtained by respondent No.1 illegally and she was produced by him before the Court when directed to do so. This allegation has not been controverted by respondent No.1. According to personal law of the parties the applicant entitled to -the custody of her daughter Sehar till she attains puberty. The marriage between the parties is still subsisting.

7. Having regard to the above circumstances, I direct that the custody baby Sehar who was handed over to applicant on 18-2-1992 under the orders this Court, shall remain with her, subject to any decision made by the Family Court/Guardian Judge, having jurisdiction, if the parties or any one of them invoke such jurisdiction.

H.B.T./S-897/K