Mst. NUZHAT SULTANA vs Syed FARUKH RAZA and another

ORDER

1. The applicant, Mst. Nuzhat Sultana, through, her counsel, has filed this application under section 491 Cr.P.C., seeking relief against respondent No,1 i,e, her husband claiming custody of her minor daughter Baby Faiza aged 1-1/2 years and Master Sayam aged seven months. The brief facts giving rise to the filing of this Criminal Miscellaneous Application are that the applicant was married with respondent No,1 on 12-1-2000 and gave birth to two children, named above. It is alleged in the application that just after few days after the marriage it revealed that besides respondent No,1 being hot headed and ill-tempered man, he used to give torture to the applicant and during entire period of stay he never showed any kind of love and affection towards the applicant: In the last week of April, 2002 respondent No,1 increased his torture and confined the applicant alongwith the minors but she managed to call her parents on phone and they got released her from the custody of respondent No,1. However, respondent snatched the infant Sayam and minor baby Faiza from her. It is further stated in the memo of application that on 2-5-2002 the applicant presented an application before the area police i,e, Police Station Gulshan-e-Iqbal for the custody of her children but no action was taken. The applicant has therefore, filed this Criminal Miscellaneous Application seeking relief, as above.

2. Notice was issued to the respondent No,1 who in response to which has appeared alongwith the Detenue. I have heard the learned counsel appearing on behalf of the applicants and learned counsel appearing on behalf of the State. It has been contended by the learned counsel that the custody of the children by respondent No,1 is not warranted by law and the applicant being mother of the children cannot live without them who are of very tender age and suckling babies. It has, further, been contended that the applicant is not being allowed to see her children in spite of best efforts made by her. He has relied upon the cases of Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852, Mst. Sarwar Kalhoro v.

3. Mukhtiar Ali Kalhoro 1999 PCr.LJ 1711 and Mst. Saima v. Ismail Khan and others 2001 PCr.LJ 1724, 1991 PCr.LJ 758 and Rubina Ali v. Rafaqat Ali and others 1997 M LD 2066 in support of his contentions. On the other hand, learned counsel appearing on behalf of respondent No,1 has contended that the minors are in the lawful custody of the father as he being the natural guardian of the minors is entitled to retain their custody. He has, further, argued that the applicant enjoys free and uninhibited access to the minors and that there was no forcible removal of the minor by him. The only question for determination in this application is whether the minors Baby Faiza and Master Sayam were forcibly kept by respondent No,1 with him and ' whether the custody with the respondent No,1 is unlawful. In this regard, it may be observed that though the custody of a minor with one of its parents cannot be termed illegal except when it is in violation of an order of a Court of law but in the present case, it is also an admitted position that the babies are aged. About 1-1/2 years and seven months, respectively, only and according to law right of 'Hizanat' lies with the mother who is entitled to keep her daughter at least up to the attaining puberty and son up to the age of at least seven years. As for the welfare of the minor is involved, respondent No,1 may approach the Guardians and Wards Com; having jurisdiction for the final custody of the children as, beside the right of custody which can alone be decided by the said Court in the circumstances obtaining in the matter, the welfare of the children appears to be of such significance and importance. The controversy as raised by the parties needs a thorough enquiry and is left to the Will of the parties to have the same settled before competent Court of jurisdiction. Since presently the minor children are in the custody of respondent No,1 who happens to be B their father, I am of the considered view that it will be just and proper if the temporary custody is given to the mother.

4. Order accordingly. However, in the circumstances, applicant is directed to make arrangement for the meeting of the father with the children once a week and let the children remain with the respondent No,1 for some part of the day i,e, for two to three hours according to convenience of the parties. After having enjoyed the meeting with the minors for the period specified above, respondent No,1 shall hand over their custody to the applicant without fail. The entitlement to the custody of the minors on regular basis would depend upon the adjudication by the Guardians Court in accordance with law. With this observation, Criminal Miscellaneous Application No,136/2002 stands disposed of.