Ss. 491, 491(1)(b)--Custody of minor--Conversation with minor--Requirements of Section 491(1)(b)--Writ jurisdiction-- The charming child is a girl aged about nine-and-a-half years, is well spoken, confident and composed-

 PLJ 2023 Islamabad (Note) 172
Present: Sardar Ejaz Ishaq Khan, J.
FATIMA AKHTAR KHANAM--Petitioner
versus
JUNAID AKBAR and 2 others--Respondents
W.P. No. 2726 of 2023, decided on 14.9.2023.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 491, 491(1)(b)--Custody of minor--Conversation with minor--Requirements of Section 491(1)(b)--Writ jurisdiction-- The charming child is a girl aged about nine-and-a-half years, is well spoken, confident and composed--She seems quite comfortable in her father’s company--Court found child conveying her desire with a smiling face and vibrant expression to live with her father, and Court did not carry impression that she said so under any threat--Court find no reason to interfere with impugned order Court--Petition dismissed.                                                                                      

                                                                               [Para 1 & 2] A & B

2021 YLR 1267, 2022 MLD 300, 2020 YLR 1256 and
2007 Cr.LJ 758 ref.

Raja Haider Ali, Advocate along with Petitioner.

Mr. Zafran Abbas Ch. Advocate for Respondent No. 1.

Date of hearing: 14.9.2023.

Order

Responding to the observations in the last order, learned counsel for the respondent father states that the custody was handed over to the father by the learned Additional Sessions Judge after a conversation in her chamber with the child. I have carried out the same exercise in the presence of Ms. Ayesha Touqeer, Advocate, in my chamber. The charming child is a girl aged about nine-and-a-half years, is well spoken, confident and composed. She seems quite comfortable in her father’s company. Her father carries out an online business and is able to spend the entire day with her. She categorically stated that her father spent a lot of time with her and helped her with her studies. I asked her indirectly several times as to why would she not want to be with her mother, and her reply on each occasion was that she would prefer to be with her father.

2. That is the substance of the matter. The legal niceties are another matter. Whether the learned Additional Sessions Judge could hand over the custody of the minor in a petition under section 491 Cr.P.C. to the father instead remains debatable but, under the circumstances, the said order does seem to meet the requirements of section 491(1)(b), if a broader interpretation to the words “improperly detained” is given, for the child considers her residing with her father proper and, by extension, improper with her mother. While several judgments have been cited at the bar by the mother’s counsel, they do not seem to be laying down an inflexible rule of custody of the minor remaining with the mother irrespective of the specific circumstances of each case. In Mst. Basri Irshad vs. Tauqir Hayat (2021 YLR 1267), the lap of the mother was regarded as the rightful place for a three and a half year old child. In Dr. Islam Ullah Khan Lodhi vs. Capital City Police Officer and others (2022 MLD 300), a petition under Article 199, a similar conclusion was reached. However, at para 6 of the said judgment is recorded that the minor had informed the Court that the father had maltreated her and was not taking care of her basic needs. In Mst. Iffat Yaqoob vs. RPO Faisalabad and others (2020 YLR 1256), the Court handed over the interim custody of the minor to the mother in circumstances where the minor for one month prior to the date of filing of the petition under Section 491 Cr.P.C. had not been residing with her father and had not been maintained by him for the last 4 years. All the above judgments are relied on by the learned counsel for the mother to claim custody of the minor. Learned counsel for the father cites Mst. Ayesha Siddiqua vs. Station House Officer, etc. (2007 Cr.LJ 758) where, while deciding the question of interim custody of a 6 year old daughter and a 4 year old minor son kept in the custody of paternal grandmother, the Court gave preference to the childrens’ wish to live with their paternal grandmother, and dismissed the petition under section 491 to grant the custody to the father. A resume of this and the other case law shows that the Courts in such matters give due consideration to the wish of the minor children, if such children are able to express their wish in a manner that inspires confidence in the Court that they are not under any improper influence or threat. As noted above, I found the child conveying her desire with a smiling face and vibrant expression to live with her father, and I did not carry the impression that she said so under any threat. In the circumstances, I find no reason to interfere with the impugned order. Writ jurisdiction being discretionary, I do not consider the occasion calls for exercise of that jurisdiction as prayed for in this petition, and dismiss this petition with the interim custody to continue with the father. Should the mother desire to contest that interim custody, she may approach the Guardian Court. However, it is expected that the father will honour the wish of the child if at any time she desires to speak to or meet her mother.

3 Disposed of.

(Y.A.)  Petition dismissed