Mst. SHAZIA SHARIF vs ZEESHAN AHMED DODHY and 2 others
This matter concerns a petition filed under Section 491, Code of Criminal Procedure 1898, seeking the custody of a minor child. The petitioner, the mother, sought the return of the child who had been in the respondent father's custody since their separation. The core legal question was whether the High Court should exercise its extraordinary jurisdiction under Section 491, Code of Criminal Procedure 1898, to transfer custody when the child has been in the other parent's care for a significant period pursuant to an arrangement. The Court held that while the mother generally has the right to custody of a minor of tender age, Section 491, Code of Criminal Procedure 1898, is not intended to pre-empt the jurisdiction of the Guardian Court, especially in non-emergency cases where evidence regarding the minor's welfare must be assessed. The Court determined that the appropriate forum for resolving custody disputes, including interim relief, is the Guardian Court under the Guardian and Wards Act 1890, as it is better equipped to determine the welfare of the minor.
- Can the High Court exercise jurisdiction under Section 491, Code of Criminal Procedure 1898, to determine custody when the child has been in the other parent's care for a significant period?
- Is the High Court's jurisdiction under Section 491, Code of Criminal Procedure 1898, intended to pre-empt the jurisdiction of the Guardian Court regarding child custody?
- Which legal forum is appropriate for determining the welfare of a minor in a custody dispute?
- Section 491, Code of Criminal Procedure 1898
- Section 12, Guardian and Wards Act 1890
ORDER
Ordinarily custody of any minor of tender age is handed over to the mother by invoking the jurisdiction under section 491, Cr.P.C. However, in this case the facts are different. Parties got separated on 1-9-1999 after the petitioner was divorced by the respondent and thereafter, even according to the petitioner there was some mutual agreement or arrangement in between the parties, as a result of which the minor was handed over to the respondent. It is true that any arrangement or agreement in-between the spouses or the parties does not in any manner bind the minor and his custody is to be decided by determining his or her welfare. However, in order to determine the welfare of the children collection of evidence is necessary and same can better be done by the Guardian Court. Even otherwise, section 491, Cr.P.C. Is not meant to pre-empt the jurisdiction of Guardian Court. If in case it is noticed that child has been forcibly taken away or retained by the father or any one else and same may be hazardous to the minor then the mother who has a first right of custody is handed over the custody: In the instant case the facts being different that child is with the father since 1-9-1999, I do not think it would be appropriate to invoke the jurisdiction under section 491, Cr.P.C. Because obviously the case is not of emergency. The petitioner may move the Guardian Court who will decide the same by keeping in view the welfare of the minor. For interim relief as well, section 12 of Guardian and Wards Act can be pressed into service.
2. Disposed of with above observations.
Cited by 5 cases
- MAH RUKH BAJWA vs AFTAB ALAM & 2 others PLJ 2008 Cr.C. (Lahore) 628
- MAH RUKH BAJWA vs AFTAB ALAM and 2 others 2008 MLD 751
- Mst. TASNEEM FATIMA vs ARSHAD MEHMOOD & another PLJ 2005 Cr.C. (Lahore) 1142
- Mst. TASNEEM FATIMA vs ARSHAD MEHMOOD and another 2005 YLR 883
- MUSSARAT SHAHEEN vs STATION HOUSE OFFICER, POLICE STATION, MOOR 2002 YLR 3751