PLJ 2008 Cr.C. (Lahore)
297
Present: Iqbal Hameed-ur-Rehman, J.
ABDUL WAHID--Petitioner
versus
Mst. ALIYA and 2 others--Respondents
Crl. Misc. No. 850-H of 2007, decided on 27.8.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Muhammadan Law--S. 354--Right of
Hizanat--Recovery of minor aged 4 years and 6 months--Matter of custody of
minors--Detenue was produced--Entitlement of minor--Matter qua guardianship and
custody of minor was pending before competent Court of law--Validity--Female
could only be disentitled to the custody of her minor child if she remarries or
goes and resides at a distant place or if she leads an immoral life or she
neglects to take proper care of the child--Held: None of disentitlements
propounded in S. 354 of Muhammadan Law applies to mother--Detenue is of a very
minor age--Being real mother is entitled to have the custody of her minor
daughter as she has a preferential right of Hizanat over the child. [P. 298] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Custody of minors of tender age--Nature of
habeas corpus--If custody of minors was improperly disturbed, then the real
mother was entitled to have custody of her son who was below the age of seven
years and daughters who had not attained puberty. [P. 298] C
PLD 2004 SC 1, rel.
Habeas Corpus--
----Decision in habeas corpus matter could not be
permitted to operate as res-judicata to any subsequent petition. [P. 299] D
Mr. Tanveer Ahmad Hashmi, Advocate for Petitioner.
Rana Ameer Ahmad Khan, AAG for Respondents.
Date of hearing: 27.8.2007.
Order
Through this petition under Section 491 Cr.P.C., the
petitioner seeks recovery of his minor daughter namely Amna aged 4 years and 6
months stated to be in the illegal and improper custody of Respondent No. 1
Mst. Aliya. The detenue has been produced by Respondent No. 1 as ordered. She
has also produced a copy of the order dated 28.7.2007 passed by the learned
Sessions Judge, Gujranwala, whereby he disposed of the petition under Section
491 Cr.P.C. filed by the petitioner, holding that "since the matter regarding
the guardianship and custody of minor is pending before Competent Court of law,
therefore, I am not inclined to pass any order on this application". The
said order has been passed on an earlier petition filed by the petitioner.
2. Learned counsel
for the petitioner has contended that the petitioner had delivered the minors
to Respondent No. 1 Mst. Aliya on 10.6.2007 in pursuance of the order dated
6.6.2007 passed by the learned Sessions Judge, Gujranwala, thereafter
Respondent No. 1 handed back over the two minors to the petitioner apart from
the detenue Mst. Amna Bibi, who was detained on the plea that minor was
sleeping and the respondent asked the petitioner to take her back the next
morning, as such the respondent has forcefully detained the minor and refused
to restore the custody to the petitioner. It is further contended that earlier
the petitioner had failed a petition under Section 491 Cr.P.C. for the recovery
of minor Amna Bibi before the learned Sessions Judge Gujranwala, who vide order
dated 28.7.2007 had declined to pass any order on his application and to
restore the custody of the detenue to the petitioner, hence this petition has
been filed.
3. Arguments
heard.
4. The law is very
much clear on the point and Section 354 of the Muhammadan Law states that a
female could only be disentitled to the custody of her minor child if she
remarries or goes and resides at a distant place or if she leads an immoral
life or she neglects to take proper care of the child. In the instant case,
none of the disentitlements propounded in Section 354 of the Muhammadan Law
applies to Respondent No. 1. Respondent No. 1 had earlier filed an application
seeking recovery of her minor children, which had been declined by the learned
Sessions Judge, Gujranwala, vide his order dated 6.6.2007. Thereafter the
respondent had moved an application before the Guardian Judge which is pending
and the schedule of meeting has been given. The detenue is of a very minor age.
The respondent being real mother is entitled to have the custody of her minor
daughter as she has a preferential right of Hizanat over the child. In this
respect reliance is placed upon Mussarat Waris vs. Muhammad Afsar Khan and 4
others, wherein it has been held that in matters pertaining to custody of minors
of tender age, High Court was empowered to issue directions in the nature
of habeas corpus under Section 491
Cr.P.C. if custody of minors was improperly disturbed, then the real mother was
entitled to have the custody of her son who was below the age of seven years
and daughters who had not attained puberty". Reliance is also placed upon
Mst. Khalida Parveen vs. Muhammad Sultan Mahmood and another (PLD 2004 SC 1),
wherein it was held hat "Courts in the cases pertaining to the custody of
a child were not supposed to go into the technicalities of the law and they
should decide the case keeping in view mainly the welfare of the child"
Reliance is also placed upon Mst. Razia Rehman vs. Station House Officer and
others (PLD 2006 SC 533), wherein it was held that "Habeas Corpus
Petition. Earlier decision in habeas corpus matter could not be permitted to
operate as res-judicata with respondent to any such subsequent petition".
Therefore, the earlier decision in the petition filed by the respondent could
not operate as a res-judicata.
5. In view of the
above perspective and keeping in view the authorities referred above, the minor
detenue Mst. Amna Bibi is allowed to be retained by Respondent No. 1 and order
dated 6.6.2007 passed by the learned Sessions Judge, Gujranwala is set aside. Resultantly, this
petition is dismissed.
(R.A.) Petition
dismissed.
