Mst. Fahmida vs Sajjad Ashraf etc.

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Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.30422 of 2014

Mst. Fahmida

VS

Sajj ad Ashraf and others. . . -. . . . ... . . Respondents

JUDGMENT

Date of hearing: 27 .11.2014

Petitioner by: lWs MuhammadZafar Sultan & A.D. Dahar, Advocates'

Respondent No.l by: Mr. Naveed Ahmad Khawaja, Advocate.

MIRZA VIOAS RAUF. J. The petitioner, through the passed by instant petition impugns the order dated 13'11'2014 learned Addl. District Judge Lahore, whereby his habeas petition' Hamza Sajid' seeking recovery of the minor namely Muhammad has been dismissed.

2.Precisely, the facts necessary for the disposal of instant petition are that the petitioner married to respondent No' l on Muharnmad l9.l1.201 I and from the wedlock, one child namely Hamza Sajid (minor) was bom who is now aged about l% years' was forciblv expelled As per contents of the petfi!,the petitioner

lhit Petition No.30422 of 2014

by respondent No.l frorn his house on I 7.05.201 4 and the minor son was snatched upon which she took refuge in her parents' house at Faisalabad. The petitioner initially filed an application under section 491 Cr.P.C. for recovery of minor child before the learned Sessions Judge, Lahore which was entrusted to the leamed Addl' Sessions Judge, Lahore who dismissed the same vide order dated 13.11.2014. Against the said order, petitioner filed the instant petition.

3.In the instant petition, notice was issued to respondent No'l vicle order clated l8.l 1.2014. Respondent No'l was also directed to produce the minor before this Court. On the next date i'e' 20.11.2014, minor was produced and on Court examination' he was having some injury in his hand. A meeting was also arranged betweenthepetitionerandtheminorwiththeconsetrtofboththe parties and temporary custody of minor was handed over to the petitioner and petitioner was also directed to produce the minor today.

4.Today both the parties are in attendance alongwith the minor and with the consent of learned counsel for the parties, case has been treated as Pacca case.

5.Leamed counsel for the petitioner has contended that the learned Addl. Sessions Judge while disallowing the application of the petitioner by way of impugned order was persuaded with the sole fact that the petitioner has approached the court with a considerable delay. He has further contended that the delay can never be fatal in such like proceedings and even otherwise' explanation with regard to delay has also been fumished in the application moved before the leamed Addl' Sessions Judge

Writ Petition No.30422 of 2014

Lahore. He has maintained that the minor is a suckling baby and he has been snatched forcibly by the respondent No'l from the petitioner and the custody of minor with respondent No'l clearly falls in illegal and improper custody. In support ofhis contentions' he has placed reliance on the case of "Mst. Saima Bibi'vs'Raheel Butt and 3 others." (2014 MLD 38), "Mst' Nadia and "Mst. Khalirha Perveen.vs.Muhammad Sultan Mehmood and another." (PLD 2004 Supreme Court 1).

6.Conversely, learned counsel for respondent No'l, with all vehemence, has controverted the arguments advanced by learned counsel for the petitioner. He, at the very outset' has drawn the attention of this Court towards a copy of petition pending before the learned Guardian Judge, Lahore which has been annexed with the record and submitted that the same is the copy of judicial record and the petitioner is not supposed to be in possession ofthe same. This objection though has no direct nexus with the proposition in hand, however' this Court will take this objection later on. Further contended that the petitioner herself left the minor with respondent No.l and she never properly maintained him even being mother. He further contended that the petitioner waited for a considerable period and it was only when she received a notice from the leamed Guardian Judge upon an application filed

by the respondent No.l under section 7 & 25 ofthe Guardians & Wards Act, 1980. He added that the instant petition is not maintainable in view of pendency of petition before the learned Guardian Judge. In this context, he has relied upon the case of "Naziha Ghazali.vs.The State and another' " (2001 SCMR

" (PLD

lilrit Petition No.30422 of 2014

2 others." (2008 MLD 751) and " '' (PLD 2014 Sindh

7.I have heard the learned counsel for the parties and perused the record.

8.Tlrere is no denial that the minor is aged about llryear and before the arising of differences, the spouses were living together. However, the petitioner was expelled thereafter while keeping the rninor son with him. The minor sou is a suckling baby and requires protection and care lbr twenty four hours a day and nobody else other than real mother can look afler him in such a tender age. There is no cavil that jurisdiction under section 491 Cr.P.C. is to be exercised with great caution and restraint. However, that cannot operate as an absolute bar on exercise of such jurisdiction in a case where minor is of tender agc and he has been snatched recently from lawful custody and there is real urgency in the matter keeping in view the welfare of the minor. As the provisions of Sec.491 Cr.P.C. provides efficacious and speedy relief for protecting the right of any person who, under the circumstances, has been kept under illegal or improper custody. The minor who is admittedly aged about lYz year and is a suckling baby, requires constant love, care and affection of the mother and there can be no substitute of the real mother in such an eventuality. The arrangement under section 491 Cr.P.C. are temporarily in nature, which are to be dealt with by way of parental jurisdiction. However, the question of custody can finally be decided by the ooncerned Guardian .ludge /m.

ll/rit Petition No.30422 of 2014

appointerl under the Guardian & Wards Act, 1890. ln the case (PLD 2012 Supreme Court 758), the Hon'ble Supreme Court while addressing the question with regard to the exercise of jurisdiction by this Court under section 491 Cr'P.C. laid down the following principle:- "It has consistently been held by this Court in the cases of Muhammad Javed (Jmrao v. Miss Uzma Vahid (1988 SCNIR l89l), Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852), Mst. Khalida Perveen v. Muhammad Sultan Mehmoocl and another (PLD 2004 SC l) and Naziha Ghazali v. The State and qnother (2001 SCMR 1782) that the matter of custody of minor children can be brought before a High Court under section 491 Cr.P.C. only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter and also that in such a case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge.

g. The case in hand, in my humble view, clearly qualifies the guidelines laid down in the above referred case. Similarly, in the case reported in (PLD 2004 S.C.l), the Hon'ble Apex Court addressed somewhat similar issue. l'he relevant extract from the said judgment is reproduced below:-

"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 plaoed 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 judgments relied upon by ihe learned counsel for the petitioner i'e' Muhammad Naseer

Writ Petition No.30422 of 2014

I{umayoun v. Mst. Syeda Ummat Khabir (supra), a learned Judge of the High Court changed the custody in exercise of thelurisdiction under section 491 Cr.l'.C. and against the said order petition for leave to appeal was filed before this Court but leave was declined keeping in view the fact that the parties have parted their ways and the minor is of a tender age. As same situation is in the case in hand where the respondent had divorced the petitioner and the age of the minor is also two years therefore' following the observation from the reported judgment, we are of the opinion that in the interest ofjustice as well as for the welfbre of the minor Hina Sultan alias Umm-i-Romaan aged two years' the petitioner being rnother is entitled to retain her custody-"

10.Keeping in view the above principles regarding the exercise ofjurisdiction by this Courl under section 491 Cr'P'C' I am of the considered view that the learned Addl. sessions Judge erred in dis- allowing the custody of minor to the petitioner, especially only on thisgroun<lthatshehasapproachedthecourlwithconsiderable delay. Such matters shoulcl not be dealt with in a meclranical manner or on the basis of technicalitics, the courts below lravc to invoke the parental.iurisdiction.

ll.lnviewofabove,byexercisingtheconcurrentjurisdiction under section 491 Cr.P.C, instant petition is allowed and the order dated l3.l1.2014 passed by the learned Addl'Sessions Judge Lahore is set aside with the direction that the minor be handed over to the petitioner who has right of "hizanant" qua him' Respondent No.l may claim custody of the minor before the concerned Guardian Judge where lre has already filed an application under section 7 &25 oI the Guardians & Wards Act, 1980 which has been fixed for 13'12.2014. The petitioner is directed to appear beforethe|earnedGuardianJudgeLahorealongwiththeminoron saiddate.NeedlesstomentionherethatthelearnedGuardian shall decide the matter at the--earliest'in accordance with law Judge

o llrit Petition No.30422 of 2014

by applying its own independent judicial mind to the facts of the case without being influenced with the order passed in the instant petition by this Court.

12.Before parting with this judgment, I would also like to dilate upon the objection raised by learned counsel for respondent No.l with regard to photocopies of the petition under section 7 & 25 of the Guardians & Wards Act, 1980 which have been placed at Page.20 to 2l of this petition which are apparently the part of judicial record of the learned Guardian Judge-lV, Lahore. The learned Guardian Judge-IV, Lahore shall hold an inquiry into the matter how the petitioner has obtained the photocopy of the judicial record without any forrnal application. He shall fix the responsibility upon all the concerned and submit his report within thirty days to the Deputy Registrar (Judicial) of this Court for perusal, alongwith recommendations regarding initiation of the proceedings against the delinquent and responsible persons' The instant petition is disposed of on the above terms with no order as to costs.

13.Office is directed to communicate this order to the concerned Guardian Judge-IV, Lahore for compliance.

-/''Zn/ (MIRZA ntua$8ilnu.,

ADproved for rePortins

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JUDGE

Rano Yomin"