HIGH COURT OF SINDH AT KARACHI
Constitution Petition No.S-842 of 2020
Mst. Adeela Saeed Qureshi …………… Petitioner
Saad Mehmood Sherani
& 2 others …………… Respondents
Date of hearing : 09.12.2020
Date of order : 15.12.2020
M/s. Muhammad Haseeb Jamali, Muhammad Nauman Jamali & Muzammil Hussain Jalbani, Advocates for Petitioner along with Petitioner.
M/s. Barrister Wajiha Maryam Mehdi, Arjumand Khan & Muhammad Jahangir, Advocates for Respondent No.1 along with Respondent No.1 and Minor Dawood Saad Sherani.
O R D E R
Abdul Maalik Gaddi, J.–Through this Constitutional Petition, petitioner has assailed the legality and propriety of the order dated 03.11.2020 passed by learned VIIth Additional District and Sessions Judge, Karachi (South) in Habeas Corpus Petition No.1506 of 2020, filed by the present petitioner against the respondent No.1, whereby the Presiding Officer of learned trial Court after hearing the parties, dismissed the said petition. Hence, this petition.
2. Facts necessary for the disposal of this petition are that petitioner and respondent No.1 were married on 04.02.2018 at Karachi and from the said wedlock on 13.12.2018 one boy/detenue namely, Dawood Saad Sherani was born. At present the age of the minor is about two years. It is alleged that since birth, the child/detenue remained with mother, however, at time due to cruel and inhuman attitude of respondent No.1, the parties went at the verge of separation, however, for the sake of welfare of minor petitioner compromise the circumstances and continued the marital tie. It is also alleged in the petition that despite best efforts the relationship could not continue as a result the respondent and his family negotiated the divorce subject to an illegal and unlawful parental agreement and in this background, the elders of the family members held several meetings and in all the meetings the respondent bent upon to divorce subject to surrender of the minor child and in this regard the father of the petitioner was forced to get the document signed. It is alleged that in none of the meeting petitioner was present, however, under the influence of her father was forced/coerced to sign the parental agreement and took the minor from the petitioner. It is also alleged that the terms of parental agreement, inter alia, states that the respondent shall have the custody of the minor for five days a week and the petitioner will have two days a week. It is clear that terms of the agreement are more in the benefit of respondent than petitioner. The very essence that is age and welfare of the minor is compromise in the agreement and therefore, the compromise is illegal, unlawful and in clear violation of principle of policy i.e. provision of Section 23 and 25 of Contract Act, and so also in violation of provision of Section 352 of Muhammadan Law. It is alleged that Talaq has taken place in between the parties and the minor is in improper custody of respondent No.1 and the petitioner is the real mother and natural guardian of detenue, who in love of her son want the custody back from respondent No.1, but respondent No.1 illegally and improperly confined the detenue and is refusing to give the custody of the detenue back to her. Hence, petitioner filed petition before the trial Court for custody of minor, which was dismissed through impugned order.
3. That in response to main petition, respondent No.1 filed his counter affidavit along with photocopies of certain documents in his favour and he has taken the plea that this constitutional petition is not maintainable and liable to be dismissed on the ground that the custody of minor is with respondent No.1, who is father,through parental agreement and in the counter affidavit the respondent No.1 has also denied the allegations as leveled against him. In the counter affidavit, he has also taken the plea that disputed question of facts cannot be decided in this constitutional petition and matter relates to custody of minor, therefore, the petitioner has to approach the guardian Judge for redressal of her grievances, if she so desire and the custody at present of the minor with respondent No.1/father cannot be termed as illegal or improper.
4. Learned Counsel for the petitioner has argued that the impugned order passed by the trial Court is against law and on facts and submitted that petitioner is the real mother of the minor who is about two years’ old and the minor was illegally and improperly kept by the respondent No.1; that the right of hizanat lies with the petitioner and that the parental agreement as alleged by the respondent has no significance which according to him is void document; that welfare of the minor lies with the minor and that the respondent No.1 is avoiding producing the minor before the trial Court as well as before this Court under the impression that minor would go to his mother due to love and affection; that the petitioner appeared before the trial Court with clean hands and disclosed all the facts and circumstances under which she was compelled to hand over the custody of minor child to the respondent No.1, but the learned trial Court failed to see the judgment of the Hon’ble Supreme Court reported in PLD 2006 SC 533, wherein it has been held that the custody on the basis of unfair settlement/parental agreement provides improper custody of minor to the father and the right of hizanat will prevail; that the learned trial Court while passing the impugned order has failed to consider the principle laid down in PLD 2004 SC 1 wherein while deciding the application under Section 491, Cr.P.C. the Court shall see the age of minor, the welfare of child and then ensure the right which have been conferred upon the child by law; that while concluding the arguments, learned Counsel for the petitioner has prayed for setting aside the impugned order passed by the trial Court and further prayed that custody of the minor who is at present about two years may be handed over to the petitioner in order to meet the ends of justice. In support of his contentions, he has relied upon the following case laws:-
(i) Mst. Beena v. Raja Muhammad and others reported as PLD 2020 SC 508;
(ii) MirjamAberrasLehdeaho v. SHO, police station Chung, Lahore and others reported as 2018 SCMR 427;
(iii) Mst. RaziaRehman v. Station House Officer and others reported as PLD 2006 SC 533;
(iv) Mst. KhalidaParveen v. Muhammad Sultan Mehmood and another reported as PLD 2004 SC 1;
(v) Mst. SaimaBibi v. Additional Sessions Judge (East), Islamabad and 3 others reported as 2018 P.Cr.L.J 1328;
(vi) Mst. ShahistaNaz v. Muhammad Naeem Ahmed and another reported as 2004 SCMR 990;
(vii) Mst. BenishLiaquat v. The Station House Officer and 2 others reported as 2020 MLD 740 [Sindh];
(viii) Mst. NasimAkhtar v. Sh. Gulzar Ahmed and 4 others reported as 1995 P.Cr.L.J 474 [Karachi];
(ix) Shanza Ali v. AamirShujaat and 2 others reported as 2017 MLD 427 [Sindh];
(x) Saadia Ahmed v. The State and 3 others reported as 1996 MLD 30 [Karachi];
(xi) Mst. RabiyaIlyas v. Additional Sessions Judge and others reported as PLD 2019 Lahore 281;
5. On the other hand, learned Counsel for respondent No.1 opposed this constitutional petition and supported the impugned order by arguing that this petition is not maintainable and liable to be dismissed and submitted that the scope of 491, Cr.P.C.is limited and ultimate jurisdiction lies with the guardian Court to decide and regulate the custody of minor after considering the welfare; that the welfare of the minor is not prime consideration for the petition under Section 491, Cr.P.C. and submitted that in the entire application there is no allegation that custody of minor was illegally removed by respondent No.1. During the course of arguments, she has referred to various documents on record and submitted that there was a family settlement in between the parties and due to this settlement the petitioner herself handed over the custody of minor to the respondent No.1, therefore, under the circumstances she was of the view that the custody of the minor with father in any way cannot be termed as illegal or improper and if the petitioner has any grievances then she has a remedy for redressal of her grievances by approaching to the guardian Judge for regularization of custody. During the course of her arguments, he has also reiterated the same facts and grounds which respondent No.1 urged in his counter affidavit. However, in support of her arguments, she has relied upon the following case laws:-
(i) Shazia v. Muhammad Naeem Ahmed reported as 2004 SCMR 990;
(ii) NazihaGhazali v. The State and another reported as 2001 SCMR 1782;
(iii) Abdul RehmanKhakwani and another v. Abdul MajidKhakhwani and 2 others reported as 1997 SCMR 1480;
(iv) Sardar Muhammad BuxMahar through Attorney v. Mst. Saman Muhammad Mahar and another reported as 2020 P.Cr.L.J 1079 [Sindh];
(v) Mst. Chanda v. SHO and others reported as 2012 MLD 1335;
(vi) Anis Fatima v. Shoukat Hussain reported as 2005 YLR 1886;
(vii) Fauzia Malik v. Sanullah and another reported as PLD 2004 Karachi 488;
6. I have heard the learned Counsel for the parties at a considerable length and have gone through the case papers so made available before me.
7. At the very outset, it would be appropriate to deal with preliminary objection which was raised by learned Counsel for the respondent No.1 regarding applicability of provisions of Section 491, Cr.P.C. in the instant case on the ground that the custody of minor is with the father/respondent No.1 which is legal and proper and since the respondent No.1 has not removed the custody of minor forcibly or illegally; therefore, the petition under Section 491, Cr.P.C. is not maintainable under the law and the petitioner is required to approach the guardian Court for redressal of her grievances, if any.
8. This Court is very much conscious about the fact that jurisdiction of Courts under the Guardians and Wards Act 1890, in respect of custody of minors and for recovery/production of minors Section 491, Cr.P.C. are entirely different. There is no question of one excluding the other, overlapping the other or destroying the other and there is no repugnancy between the said two provisions, moreover, this Court as an interim measure pending final decision of the guardian Court can pass an appropriate order where it finds that the interest and welfare of the minor demands that he/she be committed immediately to the custody of the person who was lawfully holding his/her custody before being deprived of the same. In this view wisdom can be sought to the judgment of Hon’ble Supreme Court reported as Muhammad Javed Umrao v. Miss Uzma Vahid (1988SCMR 1891), Ahmed Sami and 2 others v. Sadia Ahmed and others (1996 SCMR 268) and Abdur Rehman Khakwani and another v. Abdul Majeed Khakwani and 2 others (1997 SCMR 1480).
9. 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 and in illegal or improper custody and there is real urgency in the matter keeping in view the welfare of the minor. No doubt the father cannot be said to be having the custody of minor in illegal way; however, it does not mean that such custody cannot be termed as improper especially when minor is of extreme tender age. In the case reported as PLD 2004 SC 1, wherein the Hon’ble Apex Court addressed somewhat similar issue. The relevant extract from the said judgment is reproduced below:-
“In our opinion in the cases pertaining to the custody of child, the Courts are not supposed to go into technicality of law and they should decide the case keeping in view of the facts and circumstances of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petitioner 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.”
10. In view of the above stated position of law, the preliminary objection raised by learned Counsel for the respondent No.1 is therefore repelled.
11. It is an admitted position that minor is aged about two years and requires protection and constant care, love and affection for twenty four hours a day and nobody else other than real mother can look after him in such a tender age. There is no substitute of real mother as mother’s lap is “God’s own cradle” for a child.
12. It is the instance of the respondent No.1 that petitioner had herself handed over the custody of minor to the respondent No.1 in consequence of family settlement, however, such assertion of the respondent No.1 has vehemently been denied by the petitioner before this Court.
13. Needless to say that above factual aspect cannot be determined without recording of evidence. This Court in exercise of its jurisdiction under Section 491, Cr.P.C. does not normally record the evidence to determine disputed questions of fact as the procedure adopted in such like cases is a summary in nature. 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 concerned guardian Judge appointed under the Guardian and Wards Act, 1890.
14. Keeping in view the dictum laid down in the case laws cited supra as well as the peculiar facts and circumstances, I am of the view that the learned VIIth Additional Sessions Judge Karachi (South) erred in disallowing the custody of minor to the petitioner. Consequently, instant petition is allowed and the order dated 03.11.2020passed by the learned VIIth Additional Sessions Judge Karachi (South) is set-aside and it is ordered that by way of an interim measure, the custody of minor be handed over to the petitioner within a week. In case this order has not been complied learned XXth Civil/Family Judge, Karachi (South) shall implement this order. Respondent No.1 may claim custody of the minor as well as meeting with minor before the concerned guardian Court where matter between the parties is already sub-judice. Needless to say that learned concerned Guardian Court shall decide the matter at the earliest in accordance with law 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. Since the instant petition is allowed in above terms, therefore, all pending applications, if any, are disposed of accordingly.
15. Office is directed to communicate this order to concerned XXth Civil/Family Judge, Karachi (South), for information and compliance.
Faizan A. Rathore/PA*