Mrs. SUHAIR MAMDOUTH SUDKI DEAIS DAR vs NABEEL DAR and another
This matter concerns a petition for leave to appeal against an order of the Sindh High Court regarding the custody of a minor child, Afzal Nabeel Dar. The petitioner, a Jordanian national, had previously obtained interim custody of the child through proceedings under Section 491 of the Code of Criminal Procedure 1898. Subsequently, the High Court directed that the question of interim custody should be determined by the Family Court at Hyderabad, where substantive proceedings under Section 25 of the Guardians and Wards Act 1890 were already pending. The petitioner challenged this direction before the Supreme Court. The Supreme Court found no infirmity in the High Court's order, reasoning that the Family Court is the appropriate forum to adjudicate interim custody matters under Section 12 of the Guardians and Wards Act 1890 while the main custody application is pending. Consequently, the Supreme Court dismissed the petition for leave to appeal and discharged the interim stay order, noting that any alleged violation of the High Court's previous orders regarding the child's removal from jurisdiction remained a matter for the High Court to address.
- Whether the High Court can direct parties to seek interim custody orders from the Family Court when substantive custody proceedings are already pending there?
- Is a petition under Section 491 of the Code of Criminal Procedure 1898 the appropriate remedy for determining interim custody of a minor when a Family Court is already seized of the matter?
- Section 491, Code of Criminal Procedure 1898
- Section 25, Guardians and Wards Act 1890
- Section 12, Guardians and Wards Act 1890
ORDER
' SAIDUZZAMAN SIDDIQUI, J.---The petitioner, is seeking leave to appeal against the judgment of a learned Judge in Chambers of Sindh High Court dated 17-4-1994.
2. The petition has arisen out of a dispute between the parties over the custody of a minor Afzal Nabeel Dar. The proceedings for custody of the minor are pending before Family Court at Hyderabad. The petiti6ner during pendency of the proceedings under Guardians and Wards Act moved an application under section 491, Cr.P.C. Before the High Court of Sindh. On 10-4-1994 the learned Judge in Chambers on production of the child in Court directed that his custody be handed over to petitioner with further direction to petitioner to produce the child on the next date of hearing and at all subsequent dates. In order to ensure that the minor is not removed outside the jurisdiction of the Court, the petitioner, who is a Jordanian National, was asked to surrender her passport to Court and deposit the same with the Nazir of the Court until further order. The passport of minor which was secured- by S.H.O. Of Police Station Market, Hyderabad was also directed to be surrendered to the Court forthwith. On 17-4-1994, when the petition under section 491, Cr.P.C. Came up for hearing before the Court, the learned Judge in Chambers adjourned the hearing of the case to a date in office with the observations that as the case under section 25 of the Guardians and Wards Act for custody of the minor is already pending before the Family Court, Hyderabad, the question relating to the interim custody of the minor under section 12 of the Guardians and Wards Act should also be decided by that Court. The parties were accordingly directed to appear before the Family Court at Hyderabad on 21-4-1994 and produce the child therefor appropriate orders regarding his interim custody However, the learned Judge in Chambers made no further order with regard to the custody of child which was handed over to the petitioner on 10-4-1994 under the orders of the Court and as such the child remained in the custody of the petitioner. The petitioner filed the above petition and obtained an interim order from this Court for stay of proceedings before the Family Court and suspension of the direction of the High Court produce the child before the Family Court on 21-4-1994 until disposal of leave petition.
3. The respondent has filed a caveat in the case and his learned counsel contends that the petitioner taking advantage of the interim order of this Court has taken away the child to Jordan.
The learned counsel for the petitioner is unable to confirm or deny the assertion of respondent's counsel. Be that as it may, if the petitioner has removed the child from the jurisdiction of this Court in contravention of the order of High Court he is at liberty to move that Court for appropriate proceedings against the petitioner.
4. We have heard the learned counsel for the parties and are unable to find out any infirmity in the order dated 17-4-1994. Passed by the learned Judge in Chambers. No case for interference is made out. The petition is accordingly dismissed and leave to appeal is refused. The interim order passed earlier is discharged.
Cited by 1 case
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