EBTISAM ASHOUR NAQVI vs Syeda SAEEDA BANO NAQVI and others
This matter comes before the Supreme Court of Pakistan upon a petition seeking leave to appeal against the dismissal of a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898 by the Lahore High Court, which had declined relief on the ground that the dispute pertained to guardianship. The core legal question concerns the custody of the minor daughter born of the marriage between the petitioner and her husband, whose custody was left with the paternal grandmother in Pakistan while the father resided in the Middle East. The Supreme Court converts the petition into an appeal and accepts it, granting the custody of the minor daughter to the mother (appellant), taking note of a decree passed in her favour by an Egyptian Court and her undertaking to bring the child to Pakistan once a year to meet the grandmother and step-brothers. The holding establishes that maternal custody of a minor may be granted in such circumstances, subject to appropriate visitation undertakings.
- Whether a petition under Section 491 of the Code of Criminal Procedure 1898 is maintainable for the custody of a minor?
- Can the Supreme Court convert a petition for leave to appeal into an appeal and grant custody of a minor?
- Whether the mother is entitled to the custody of her minor daughter when the father is residing abroad and the child is left with the paternal grandmother?
- Section 491, Code of Criminal Procedure 1898
ORDER
' ABDUL SHAKURUL SALAM, J---Mr. Muhammad Shahzad Shoukat, Advocate who had appeared for the petitioner in the Lahore High Court states that although he is not an Advocate of this Court yet he may be heard in support of the petition as a friend of the petitioner. The petitioner is also present in person.
1. The petitioner seeks custody of the minor daughter born on 16-1-1986 namely Syeda Ahlam Hussain Naqvi.
2. Relevant facts are that the petitioner was married with Syed Zia Hussain Naqvi a Pakistani national. Both of them had met in Lybia and marriage was performed in Malta at the Egyptian Consultate. Syed Zia Hussain Naqvi was earlier married with an Indian lady and they had a son. The lady was left with the son. Syed Zia Hussain Naqvi married a Pakistani lady who produced three sons. The lady died. Syed Zia Hussain Naqvi then married the petitioner as stated above and the dispute is about the daughter out of this wedlock. The husband is somewhere in the Middle East and the baby girl has been left with his mother, namely Syeda Saeeda Bano Naqvi.
3. The petitioner had filed a petition under section 491, Cr.P.C. Before the Lahore High Court but a learned Judge dismissed the same observing that the matter pertained to guardianship. Hence this petition.
4. Notice was issued to the grand-mother of the child who has appeared alongwith the child.
5. The petitioner is present in Court and states that she wants and is entitled to the custody of her minor daughter. A decree from an Egyptian Court has also been passed in her favour. She further undertakes to bring the child to Pakistan once a year for meeting the grandmother and step- brothers.
6. After hearing the parties the petition is converted into appeal and accepted. The custody of the minor daughter Syeda Ahlam Hussain Naqvi is allowed to the appellant.
Cited by 3 cases
- Dr. VIKTOR HACKER vs Dr. SHAHIDA MANSOOR and others PLJ 2013 Cr.C. (Islamabad) 513, 2013 PLD Islamabad 34
- Dr. VIKTOR HACKER vs Dr. SHAHIDA MANSOOR etc PLJ 2013 Cr.C. (Islamabad) 513
- AYA SASAKI vs ZARINA AKHTAR 1999 CLC 1202