PLJ 2012 Islamabad 29 (DB)
Present: Riaz Ahmed Khan and Muhammad Azim
Khan Afridi, JJ.
MUHAMMAD
FARAZ--Appellant
versus
MEHFEEZ and
others--Respondents
I.C.A. No. 86 of
2011, decided on 23.1.2012.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
491--Guardians and Wards Act, 1890, S. 7--Law Reforms Ordinance, 1972, S.
3--Custody of minor--Habeas corpus petition for
recovery of minors--Dismissal of petition by Distt.
Court--Challenge to--High Court directed to hand over custody of minors to
mother--Intra Court Appeal--Hizanat--Validity--Minor
children were vested with privilege of hizanat till
age of puberty in case of female and seven years in case of male children--Bond
of hizan can neither be disrupted nor interrupted by
divorce--Same might face discontinuity either on remarriage of mother or overpassing prescribe age i.e. seven year in case of male
and attainment of age of puberty in case of a female child or when welfare of
minor i.e. prime and paramount goal and object of well being becomes at
stake--Family Court was invested with jurisdiction to determine and decide
entitlement of parties for custody of minors on tenet and rule of welfare of
minor and in case welfare of minors was found in person of petitioner, then
rule of hizanant would become fruitless and useless
and would looses significance--I.C.A. was dismissed. [Pp. 33 & 34] B & D
Hizanat--
----Being mother
of minors was having preferential right of hizanat--Hizanat an origination and emanation of Hizan
signifies and denotes love, care and affection directly and constantly needed
to a male child upto age of seven years and a female
child till puberty--Care, love and affection undoubtedly plays vibrant and
vital role in making of nature and character of a person and as such hizanat can be safely termed as tribute and privilege of
minor assigned and vested in mother. [P.
33] A
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
491(b)--Habeas corpus--Improper detention of minors in private custody--Powers
of--S. 491(b), Cr.P.C. authorized High Court, a
Sessions Judge or an Addl. Sessions Judge to issue directions of nature of
Habeas Corpus that a person illegally or improperly retained in public or
private custody be set at liberty--Appellant had retained minors contrary to
rule of Hizanat and as such custody of appellant was
an improper detention of minors in private custody and petition u/S. 491, Cr.P.C. was competent and entertainable. [P. 33] C
PLD
2011 Lah. 423, 2011 YLR 1021,
2010 YLR 1629 & PLD 2010 Kar. 119, rel.
Mr. Sajjad Haider Malik,
Advocate for Appellant.
Mr. Tahir Afzal Abbasi,
Advocate for Respondents.
Date of hearing:
23.1.2012.
Judgment
Muhammad Azim Khan Afridi, J.--Muhammad Faraz son of Muhammad Naseem r/o Dhoke Sanjalian, Post Office Bhara Kahu Tehsil
and District Islamabad, has preferred the instant Intra Court Appeal u/S. 3 of
Law Reforms Ordinance, 1972, seeking annulment of judgment and order passed by Hon'ble Single Judge-in-Chamber, in W.P.No.
370/2011 titled Mst. Mehfeez
and others Vs. Muhammad Faraz.
2. Brief and relevant facts for the disposal of
the instant Intra Court Appeal are that Mst. Mehfeez D/o Muhammad Azram
hereinafter referred to as Respondent No. 1 filed W.P.No.
370/2011 under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973, hereinafter referred to as Constitution, challenging therein order dated
13.1.11 passed by learned Additional District & Sessions Judge, Islamabad,
(Respondent No. 3), who dismissed the petition of Respondent No. 1 for the custody
of minors namely Waqas Ahmad, Aleeza
Bibi and Awais Ahmad
instituted under Section 491 Cr.P.C. The said writ
petition was accepted by the Hon'ble Single Judge of
this Court vide judgment and order dated 21.4.11 and directed the appellant to
handover the said minors to Respondent No. 1 forthwith. That the said judgment
and order is contrary to the facts and law as the Respondent No. 1 has left the
minors in June, 2009 and that the appellant was upbringing, educating and
maintaining them since then. That a petition u/S. 7 of Guardian & Wards
Act, was pending in the Court of Guardian Judge Islamabad, which has become infructuous due to the afore-stated judgment and order.
That due to pendency of the said petition before the Guardian Judge, Hon'ble Single Judge-in-Chamber was having no jurisdiction
to entertain the writ. That the impugned judgment would
adversely affect the education of two minors who are admitted to school.
That the said judgment and order is liable to be set-aside and writ petition
would merit dismissal.
3. Learned counsel for the appellant has argued
that the Respondent No. 1 left the minors in the month of June 2009, at her own
whereafter they are brought up, educated and
maintained by the appellant. That the proper forum for adjudication of the
controversy between the parents was a petition under Guardian & Wards Act,
which is already in progress before the learned Guardian Judge Islamabad. That
the impugned judgment and order passed by the Hon'ble
Single Judge, was contrary to the facts of the case and attitude and conduct of
Respondent No. 1 towards the minors. That the matter should have been left for
the decision of the Guardian Judge, and that the Hon'ble
Single Judge-in-Chamber should have, at the most, directed expeditious disposal
of the petition pending in the Court of learned Guardian Judge, Islamabad. That the
impugned judgment and order would adversely affect the person and career of
minors as they are getting education in schools. That neither the petition u/S.
491 (1) Cr.P.C. nor writ petition under Article 199
of the Constitution was competent. Reliance was placed on the case of Mst. Fouzia Bibi
reported as PLJ 2010 Cr.C.(Lahore) 396.
4. On the other hand, learned counsel for the
Respondent No. 1 argued that the impugned judgment and order of the Hon'ble Judge of this Court, is in consonance with the
mandate of law. That the appellant had entered into second marriage and as such
the minor children are left at the mercy of step-mother. That
the Respondent No. 1 being mother of minors was having preferential right of
"Hizanat". That
the said judgment and order is not open to interference in ICA. Reliance was placed on PLD 2011 Lahore 423, 2011 YLR
1021, 2010 YLR 1629 and PLD 2010 Karachi
119.
5. We have heard arguments of the learned
counsel for the parties and perused the record with their assistance.
6. Undisputed facts of the case of the parties
are that marriage of the appellant and Respondent No. 1 was solemnized in the
month of February, 2004, and out of their wedlock three minor children namely Waqas Ahmad (son) aged about 6 years, Aleeza
Bibi (daughter) aged about 4 years, Awais Ahmad (son) aged about 2« years, were born. The
parties were not living and leading a comfortable and harmonious life and, with
the passage of time, started developing differences with each other which
ultimately culminated into hatred and ended the matrimonial life by divorce of
Respondent No. 1. The appellant had thereafter, entered into a contract of
second marriage.
7. Respondent No. 1, being real mother of
minors, submitted Habeas Corpus Petition u/S. 491 Cr.P.C.
for the recovery of the said minors before the Court of learned Sessions Judge,
Islamabad, which was entrusted to and heard by learned Additional Sessions
Judge, Islamabad. Dismissal of the same vide judgment dated 13.1.11 constrained
Respondent No. 1 to file the writ under Article 199 of the Constitution, which
was heard and accepted by the Hon'ble Single
Judge-in-Chamber and directions were issued for handing over the custody of
three minor children to the mother forthwith.
8. "Hizanat"
an origination and emanation of "Hizan"
signifies and denotes love, care and affection direly and constantly needed to
a male child upto the age of seven years and a female
child till puberty. Care, love and affection undoubtedly plays a vibrant and
vital role in the making of nature and character of a person and as such "Hizanat" can be safely termed as a tribute and
privilege of minor assigned and vested in mother.
9. Bond of "Hizan"
can neither be disrupted nor interrupted by divorce. The same may face
discontinuity either on remarriage of mother or overpassing
the prescribe age i.e. seven years in case of male and attainment of age of
puberty in case of a female child or when the welfare of minor i.e. the prime
and paramount goal and object of well-being, becomes at stake.
10. Undisputed facts of the case of the parties
would suggest that all the three children are minors and borne out of the
wedlock of the appellant and Respondent No. 1. Respondent No. 1, real mother
and the minor children are vested with the privilege of Hizanat
till the age of puberty in the case of female and seven years in the case of
male children.
11. Section 491(b) Cr.P.C.
authorizes a High Court, a Sessions Judge or an Additional Sessions Judge to
issue directions of the nature of Habeas Corpus that a person illegally or
improperly retained in public or private custody be set at liberty. Appellant
has retained the minors contrary to the rule of "Hizanat"
and as such custody of the appellant is an improper detention of minors in
private custody and petition of Respondent No. 1 under Section 491 Cr.P.C. was competent and entertainable.
12. We, for the above reasons, were, not
impressed by the arguments of learned counsel for the appellant desirous of
upsetting the judgment of this Court dated 21.04.11 containing directions of
handing over the minors children to the mother. Needless to mention that the
learned Family Court, is invested with the jurisdiction to determine and decide the entitlement
of parties for the custody of
minors on the tenet and rule of welfare of minor and in case the welfare of
minors is found in the person of petitioner, then rule of "Hizanat" would certainly become fruitless and useless
and would therefore loose significance.
13. For the above mentioned reasons, the ICA is found devoid of
merits, and is, therefore, dismissed with no order as to costs.
(R.A.) I.C.A.
dismissed
