2024 S C M R 486
[Supreme Court of Pakistan]
Present: Ijaz Ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ
Mst. QURAT-UL-AIN---Petitioner
Versus
STATION HOUSE OFFICER, POLICE STATION SADDAR JALALPUR JATTAN, DISTRICT GUJRAT and others---Respondents
Civil Petition No. 3718 of 2023, decided on 13th December, 2023.
(Against the order/judgment of the Lahore High Court, Lahore dated 21.09.2023 passed in Writ Petition No.59365 of 2023)
(a) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Hebeas corpus, writ of---Scope---Invocation and passing of the writ of habeas corpus is subject to the satisfaction of the High Court that no adequate remedy is provided by the law.
(b) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Habeas corpus, writ of---Scope---Custody of minor---Whatever the inter se relations between the parents may be, the purpose of a writ of habeas corpus when it comes to the production of a child is to ensure that the child is, at any given moment, capable of being produced before a Court of law---However, there can be no question that a writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child---Clear grounds must be made out and the writ must only be issued in favour of a person who is entitled to custody of the child---Issuing of such a writ is subject to the satisfaction of the High Court that a minor is not being held in custody without lawful authority or in an unlawful manner---Before issuing writ of habeas corpus the High Court should be satisfied that seeking remedy under the Guardians and Wards Act, 1890, or any other law for the time being in force, would not be an adequate remedy; that the production of the child before the High Court is in the best interests of the child/minor; and, that handing over custody of the minor/child to the person petitioning the High Court is in the best interests of the child/minor.
Dushyant Somal v. Sushma Somal AIR 1981 SC 1026 ref.
(c) Guardians and Wards Act (VIII of 1890)---
----Ss. 7 & 25---Constitution of Pakistan, Art. 199(1)(b)(i)---Hebeas corpus petition---Maintainability---Alternate remedy, availability of---Incompetently filed petition---Interim custody of minor girl restored to mother---Mother contracting second marriage---High Court awarding custody of minor girl to paternal grandmother as an interim arrangement after mother contracted second marriage---Legality---Grandmother, no matter the love she may have for her grandchildren, is not the parent of a child for the purposes of the law and must clearly specify why a writ of habeas corpus must be issued for the production of her grandchild(ren), especially so when it is admitted that the grandchild is in the custody of one or both parents---Paternal grandmother failed to aver that she was filing the writ petition in her capacity as a friend of the minor---At no point had the paternal grandmother averred that she was authorised by her son (minor's father) to file the writ petition---No correspondence whatsoever was produced before either the High Court or the Supreme Court which could show that the paternal grandmother was authorised to file the writ petition as a representative of the minor's father---Mere assertion in her petition that paternal grandmother wants to "properly look after the detenue" was insufficient to show that she was interested in the welfare of the child---In the absence of a competently filed writ petition and the presence of an alternative remedy for the paternal grandmother under the Guardian and Wards Act, 1890, the High Court ought to, in the first place, have satisfied itself that despite these shortcomings, it was still in the best interests of the minor that she be produced before the High Court more so: (i) when it was admitted by paternal grandmother in her petition that the minor was in the custody of her real mother; and (ii) an absence as to how the minor being in the custody of her own mother was without lawful authority which necessitated the production of the minor before the Court---Ordering of the divestment of custody by the impugned judgment/order was without lawful authority---In the presence of an adequate remedy, the High Court was constitutionally barred from exercising jurisdiction under Article 199 of the Constitution---All proceedings in the paternal grandmother's writ petition were declared to be without lawful authority and the writ was liable to be dismissed---Appeal was allowed accordingly with the direction that the Guardian Court, seized of the guardian petition filed by the mother would proceed with the matter expeditiously.
(d) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Hebeas corpus, writ of---Custody of minor---Friend of minor---Scope---Where a person entitled to custody is shown to be incapable of approaching the Court or where no such person exists, the question of the right of a friend to make such an application arises---In such a situation, the friend of the minor must show that (i) no one who is legally entitled to the custody of the minor or to represent him/her exists, or that such a person, if any, is present and available but unable to file a habeas corpus petition; and (ii) the friend is interested in the welfare of the child.
Raj Bahadur v. Legal Remembrancer AIR 1953 Cal. 522 ref.
(e) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Hebeas corpus, writ of---Scope---Custody of minor---Tendency of the High Courts to readily issue writs of habeas corpus in custody matters---Observations recorded by the Supreme Court deprecating such tendency stated.
The tendency of the High Courts to readily and unhesitatingly resort to extreme measures by involving law enforcement agencies in family matters cannot be appreciated, especially so where no element of criminality is there and the child is in the lawful and rightful custody of the parent. Such actions cause unnecessary trauma and harassment for the concerned parent, specially where the concerned parent is the real mother of the child. The High Court must exercise extreme care, caution, and circumspection in such matters. Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping and/or abduction of the child is involved, the High Court may exercise its constitutional jurisdiction.
Issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the Guardians and Wards Act, 1890 provides the Guardian Court with all requisite powers to pass and enforce its orders in matters of custody of the child(ren). It is, inappropriate for a constitutional court to encroach upon and arrogate itself the powers of a Guardian Court, which is the court of competent jurisdiction under the law, to decide all matters relating to custody of child(ren).
(f) Guardians and Wards Act (VIII of 1890)---
----Ss. 7 & 25---Convention on the Elimination of All Forms of Discrimination Against Women, Arts. 1 & 16---United Nations Convention on the Rights of the Child (UNCRC), Arts. 9 & 37---Custody of minor---Mother contracting second marriage---Mother remarrying does not automatically bar her under the law from the custody of her children---Holistic reading of the relevant Islamic principles, the Convention on the Rights of the Child, and Convention on the Elimination of All Forms of Discrimination Against Women leads to the conclusion that there is no legal justification for separating a mother from her child if the mother remarries.
Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Muhammad Owais v. Nazia Jabeen 2022 SCMR 2123 and Najaat Welfare Foundation v. Federation of Pakistan PLD 2021 FSC 1 ref.
Iftikhar Ahmad Bashir, Advocate Supreme Court for Petitioner along with Petitioner in person.
Zafar Iqbal Klasoon, Advocate Supreme Court (via V.L. Lahore) for Respondent No. 3.
Baleeghuz Zaman, Additional A.G. Punjab for Respondent Government.
Nemo for other Respondents.
0 comments:
Post a Comment