S.491--Father of minor filed habeas corpus petition, which was allowed and custody of minor was handed over to him.

 S.491--Father of minor filed habeas corpus petition, which was allowed and custody of minor was handed over to him.

Mother of minor had passed away and he stayed in the custody of his maternal grandfather (nana).

Application filed by maternal grandfather of minor was dismissed accordingly.

2013 M L D 741 [Sindh]
Before Aftab Ahmed Gorar, J
Syed MUHAMMAD MAHMOOD ALAM---Applicant
Versus
MUHAMMAD AFSAR KHAN and another---Respondents
Criminal Miscellaneous No.87 of 2011, decided on 5th November, 2012.

Criminal Procedure Code (V of 1898)---

Ss.491 & 561-A--Habeas corpus--Application for recovery of minor-boy from the custody of his father, dismissal of.

Right of custody of maternal grandfather (nana) and grandmother (nani) of minor.

Scope---Mother of minor had passed away and he stayed in the custody of his maternal grandfather (nana).

Father of minor filed habeas corpus petition, which was allowed and custody of minor was handed over to him.

Maternal grandfather of minor contended that minor had been living with his maternal grandmother (nani) who had a preferential right of custody, and that minor's father had no arrangements to look after him---Validity.

Father of minor was his natural guardian and he would be in a better position to maintain and look after the child and provide him proper education and livelihood--- Although maternal grandmother had the preferential right for the custody of the minor but, in the present case, she had not come forward and instead maternal grandfather of minor was claiming the right of custody, who could not be given preference over the natural guardian viz. father.

Merely mentioning that after the demise of minors' mother, he was being looked after his maternal grandmother was not enough unless she came forward and claimed such right.

Application filed by maternal grandfather of minor was dismissed accordingly.

2011 MLD 1814 and 2011 YLR 348 ref.

ORDER

AFTAB AHMED GORAR, J.---Through this Cr. Misc. Application filed under section 561-A, Cr.P.C. applicant Syed Mohammad Mahmood Alam has impugned the order dated 15-8-2011 passed by IVth Additional Sessions Judge, Karachi East whereby he granted Habeas Corpus Petition filed by respondent No.1 and handed over custody of minor Mohammad Rayyan to him

Brief facts, giving rise to the filing of instant Criminal Miscellaneous Application, are that respondent No.1 was married with daughter of the applicant namely Ismat Sultana on 27-4-2008 and out of said wedlock one son Mohammad Rayyan was born on 15-12-2010. Unfortunately mother of the minor expired on 22-12-2010 and thereafter the applicant, who is maternal grand father of the child, kept his custody with him. After some time respondent No.1 asked to return the custody of minor but the applicant did not do so. Ultimately respondent No.1 filed Habeas Corpus Petition in the Court of District and Sessions Judge, Karachi East which was allowed vide impugned order, hence this Criminal Miscellaneous Application.

Learned counsel for the applicant contended that the learned trial Judge erred in taking cognizance under section 491, Cr.P.C. as there is specific law under the Guardians and Wards Act and the G and W Court has the exclusive jurisdiction to decide the custody of the minor; that minor is milk suckling child and respondent No.1 has no arrangement to look after the child in a proper manner as he goes to job in the morning and return in the late hours of the night; that after the death of his mother, the minor has been living with her maternal grandmother (Nani) who has preferential right for the custody of the minor. In support, he relied upon the cases reported in 2011 MLD 1814 [Lahore] and 2011 YLR 348 [Lahore] wherein it has been held that maternal grandmother (Nani) has a preferential right for custody of the minor and accordingly custody was handed over to her.

Conversely, learned counsel for respondent No.1 argued that respondent No.1 being father is the natural guardian of the child and can look after the child and provide necessities of the life including education in a better way. He further contended that the minor is happy with the father, and keeping in view welfare of the child, it would be in the interest of justice that the custody is allowed to continue with the father.

Learned A.P.-G. while adopting the arguments advanced by learned counsel for respondent No.1 prayed for dismissal of Criminal Miscellaneous Application.

I have given anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material available on record.

It is well settled that paramount consideration in respect of custody of the minor is welfare of the minor. In the present case respondent No.1, being father of the child is his natural guardian. He would be in a better position to maintain and look after the child and provide him livelihoods more particularly proper education. There is no cavil with the proposition, as laid down in the case-law relied upon by the learned counsel for the applicant, that maternal grandmother has the preferential right for the custody of the minor but in the instant case she has not come forward and instead maternal grandfather claims the right of custody who cannot be given preference over the natural guardian viz. father. Merely mentioning that the child, after the demise of his mother, is being looked after by his maternal grandmother (Nani) is not enough unless she comes forward and claims such right

For the foregoing reasons, I do not find any merits in the Criminal Miscellaneous Application which is dismissed in limine.

Above are the reasons for short order passed on 5-11-2012.

MWA/M-154/K Application dismissed.