-In child’s custody matters, ordinary remedy lies under Guardian and Wards Act, 1890 as case may be-- There are significant difference between inquiry under Guardian and Wards Act, 1890 and exercise of powers by a Constitutional Court which is of summary in nature-

 PLJ 2023 Lahore (Note) 117
Present: Miss Aalia Neelum, J.
SAMAR SHAHZAD--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, WAZIRABAD DISTT.GUJRANWALA etc.--Respondents
W.P. No. 51856 of 2022, decided on 6.9.2022.

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

----S. 491--Constitution of Pakistan, 1973, Art. 199--Petition for habeas corpus--Custody of minor--Allowed--Custody of minor was given to Respondent No. 3--Powers of constitutional Court--Challenge to--Habeas corpus proceedings are not to justify or examine legality of custody--In child’s custody matters, ordinary remedy lies under Guardian and Wards Act, 1890 as case may be-- There are significant difference between inquiry under Guardian and Wards Act, 1890 and exercise of powers by a Constitutional Court which is of summary in nature--This Court can not hold a detailed inquiry into allegations, when Court is of view that a detailed inquiry is required, Court may decline to exercise extraordinary jurisdiction and direct parties to approach Guardian and Wards Court--It is only in exceptional cases, rights of parties to custody of minor will be determined in exercise of ordinary jurisdiction on a petition for habeas corpus--Petition dismissed.                        [Para 2] A, B & C

Mr. Muhammad Kashif Malik, Advocate.

Date of hearing: 6.9.2022.

Order

Through instant Constitutional Petition under Section 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made following prayer:

“It is prayed that by allowing instant petition, the impugned order dated 10.08.2022 may graciously be declared as illegal, unlawful and against the interest and welfare of the minors namely Hannan Ahmad and Fawad Ahmad and be set aside and custody of both minors he ordered to be restored with the petitioner forthwith, in the interest of justice. Further prayed that till the final disposal of instant petition, the Respondent No. 3 be directed to hand over the custody of the minor kids to the petitioner”

2. From the record annexed with instant petition, it transpires that Respondent No. 3, mother of the minors filed the habeas corpus petition seeking custody of the minors from her husband, present petitioner, alleging that her husband ousted her from her matrimonial house and forcibly snatched her minor sons on 28.07.2022. On refusal of the petitioner to hand over custody to the Respondent No. 3, she filed a habeas corpus petition before learned Additional Sessions Judge, Wazirabad and custody of the minors was handed over to the Respondent No. 3. The grounds/pleas raised by the petitioner need detail inquiry. Habeas corpus proceedings are not to justify or examine the legality of the custody. In child’s custody matters, the ordinary remedy lies under the Guardian and Wards Act, 1890 as the case may be. The pleas raised by the learned counsel for the petitioner require detailed inquiry. There are significant difference between the inquiry under the Guardian and Wards Act, 1890 and exercise of powers by a Constitutional Court which is of summary in nature. What is important is the welfare of the minors. This Court can not hold a detailed inquiry into the allegations, when the Court is of the view that a detailed inquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Guardian and Wards Court. It. is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of ordinary jurisdiction on a petition for habeas corpus. The learned Additional Sessions Judge, Wazirabad has already directed the parties to approach the Guardian and Wards Court in future.

3. In view of above, instant petition stands dismissed. However, the petitioner is at liberty to approach the learned Guardian Court for the custody of the alleged detenues, if so advised.

(Y.A.)  Petition dismissed