Case Law (Female minor handed over to father on the basis of emotional attachment)

 PLJ 2004 SC 45

Criminal Procedure Code, 1898 (V of 1898)--

—-S. 491-High Court handed over minor female child to his father because she was emotionally attached with her father-respondent-In cases peitaining to custody of a child, Courts are not supposed to go into

technicalities of law-Although ordinarily a petition under Section 491 Cr.P.C. is not found to be competent when there is no element of illegal custody by father of his own child but in welfare of child as well as to ensure that rights which have been conferred upon child are fully protected in a suitable manner, Courts could also pass appropriate orders in exercise of its inherited jurisdiction-Custody of minor aged two years was handed over to her mother with observation that parties shall be at liberty to approach Guardian Judge for redressal of their grievance if any.

[Pp. 47 & 48] A, B & C

Malik Muhammad Azam Rasul, ASC and«/Vfr. Faiz ur-Rehman, AOR (Absent) for Petitioner.

Mr. M. Kowkab Iqbal, ASC/AOR, for Respondents. Date of hearing : 24.9.2003.

 PLJ 2004 SC 45

[Appellate Jurisdiction]

Present: IFTIKHAR MUHAMMAD CHAUDHRY AND TANVIR AHMED KHAN, JJ. Mst. KHALIDA PERVEEN-Petitioner

versus

MUHAMMAD SULTAN MEHMOOD and another-Respondents Criminal Petition No, 601-L of 2003, decided on 24.9.2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 7.8.2003 passed in'Crl. Misc. No. 652-H of 2003).

JUDGMENT

Iftikhar Muhammad Chaudhry, J.--This petition has been filed against the judgment dated 8.7.2003 passed by a learned Single Judge of Lahore High Court, Lahore, whereby habeas corpus petition filed by the petitioner Mst. Khalida Perveen d/o Muhammad Ramzan for recovery of her daughter aged about two years namely Hina Sultan alias Umm-i-Romaan, from the custody of her father Muhammad Sultan Mehmood has been dismissed.

2.   In this case, parties being husband and wife parted their ways on °] account of dissolution of marriage tie between them. They had a female child c of two years old who was allowed to remain in the custody of her father in pursuance of a document written between the parties. Subsequently, Mst. Khalida Perveen, petitioner approached the learned High Court by invoking its jurisdiction under Section 491 Cr.P.C. but .relief so claimed by her was declined vide impugned judgment dated 7.8.2003.

3.    Learned counsel appearing for the petitioner stated that the minor being two years of age has got a right guaranteed her to live with her mother till the time of her attaining puberty according to the Muslim Shariat and she cannot be deprived from her such right merely on the basis of a document which has been executed between the parties as per their convenience. He further stated that there are number of cases wherein such document written between the parties at the time of dissolution of the marriage relating to the custody of minor have not been considered to be a binding document because the supreme consideration is the welfare of the minor. According to him as the age of minor is two years therefore, except the mother, no one else is legally entitled to keep her custody as after

dissolution of marriage she had not contracted second marriage. Even otherwise, petitioner is not in the adverse interest of the minor in any manner, therefore, the learned High Court instead of entering into the technicalities of law in the interest of justice and to watch the supreme interest of the minor may have allowed her custody to the mother. Learned counsel to substantiate his plea, relied upon Muhammad Naseer Humayon vs. Mst. Syeda ummatul Khabir (1987 SCMR 174).

4.     Learned  counsel  appearing for the  respondent vehemently

opposed the petition on the ground that Respondent No. 1 was not retaining illegal custody of the minor because  he being the father was natural guardian, thus he was fully qualified to keep her custody with him. He further explained that petitioner herself handed over custody of the minor to the father at the time of dissolution of the marriage by executing a document therefore, in such like situation, petition under Section 491 Cr.P.C. was not competent and if the Superior Courts will entertain habeas corpus petition against father then nobody would approach the Family/Guardian Judge for the change of custody and the relevant provisions of Guardian and Wards Act, will become redundant.

5.  We have heard learned counsel for the parties and have also gone

through the available record carefully as well as the impugned judgment. It is to be noted that the learned Judge in Chambers of the High Court had not decided the case keeping in view the relevant provisions of the law but had deprived the mother from the custody of her minor female child for the reasons that minor had emotional attachment with her father-respondent namely  Muhammad   Sultan   Mehmood.   Relevant   para  from   the   said judgment is reproduced herein below to substantiate that the judgment has not been written on consideration of law points.

"Even today the response of the alleged minor detenue shown towards her mother is devoid of emotional attachment. In this • situation it is not considered proper that the detenue should suffer in her attachment or other emotional towards her father, the petition is dismissed."

In our opinion in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking.into consideration welfare of the child. Although ordinarily a petition under Section 491 Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the Courts could also pass appropriate orders in exercise of its inherited jurisdiction. In this behalf in the judgment relied upon by the learned counsel for the petitioner i.e. Muhammad Naseer