Syed SHAH IBRAR QADRI vs Mst. FARRUKH NAHEED HASHMI
This matter concerns a custody dispute between a father and mother over two minor daughters, following their divorce in Canada. The mother, having obtained a custody order from a Canadian court, alleged that the father abducted the children and brought them to Pakistan. She filed an application under Section 491 of the Code of Criminal Procedure 1898 in the Lahore High Court seeking the production and custody of the minors. The High Court allowed the application, restoring custody to the mother and returning their passports. The father challenged this decision, arguing that the High Court erred in exercising jurisdiction under Section 491, Cr.P.C. while the matter was already pending before a Guardian Court. He contended that the High Court's final order effectively usurped the jurisdiction of the Guardian Court, which is the competent forum to adjudicate custody disputes. The Supreme Court granted leave to appeal to consider whether the High Court's intervention under Section 491, Cr.P.C. was appropriate given the concurrent proceedings in the Guardian Court and whether such an order improperly preempted the Guardian Court's authority.
- Can the High Court exercise jurisdiction under Section 491, Code of Criminal Procedure 1898 to determine child custody when the matter is already pending before a Guardian Court?
- Does the High Court's final order granting custody under Section 491, Code of Criminal Procedure 1898 improperly usurp the jurisdiction of the Guardian Court?
- Is it appropriate for the High Court to pass a final custody order under Section 491, Code of Criminal Procedure 1898 rather than an interim order while the Guardian Court is seized of the matter?
- Section 491, Code of Criminal Procedure 1898
ORDER
SAJJAD ALI SHAH, J.---Petitioner and respondent herein are father and mother respectively of two minor girls, for whose production in the Court application under section 491, Cr.P.C. Was filed in the Lahore High Court alleging therein that they were illegally and unlawfully detained by the father.
After marriage both parties settled in Canada and were divorced. Mother obtained order of custody of minors in her favour from the Canadian Court and according to her, father abducted minors and brought them to Pakistan. Application under section 491, Cr.P.C. Was hotly contested by both parties and in the meanwhile minors were placed in Darul Aman. High Court has allowed application vide short order passed on 30-11-1993 by restoring custody to the mother. Detailed reasons followed in the judgment, copy of which is also on the record.
2. It is contended on behalf of the petitioner/father that first application under section 491, Cr.P.C.
Was dismissed by the High Court on the ground that in the matter of custody of minors, High Court cannot interfere under section 491, Cr. PC as Guardian Court is seized of the matter and for the same reason second like application should have been dismissed by the High Court.
Second contention is that even now Guardian. Court seized:, of the matter, which is competent under the law to decide question of custody of minors but High Court instead of passing interim order has finally allowed the application under section 491, Cr.P.C. By allowing custody of minors to her but also has restored to her passport, which-has been or can be used by the mother to leave the country alongwith minors, which amounts to depriving the Guardian Court to decide issue of custody of minors as contemplated under the relevant law.
3. Leave is granted to consider the above contentions.