ORDER SHEET

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constt. Petition No. S- 199 of 2022

Date	Order with signature of Judge

1. For order on office objection.

2. For hearing of main case. 

06-07-2022

Mr. Hizbullah Jokhio, advocate for the petitioner a/w petitioner.

Mr. Abdul Rehman A. Bhutto, advocate for respondent No.7.

Mr. Munwar Ali Abbasi, A.A.G. a/w A.S.I Bashir Ahmed of P.S. Fort, Hyderabad.

.-.-.-.-.-.-.-.-.-.-.-.-.

Objections have been filed on behalf of respondent No.7, which are taken on record.

The petition is filed by the petitioner to issue a writ of Habeas Corpus directing the respondent-police officials to produce her minor sons namely, Muhammad Azan aged about 5 years, and Muhammad Ahan aged about 4 years.

According to the averments of the petition, her husband passed away recently, and in the meanwhile private respondents took away the minor’s custody. The petitioner came into contact with them for returning their custody, but they refused to return the custody of the minor sons to her, who have now been produced before this court in compliance with the order dated 05.07.2022.

Learned counsel for the petitioner, has argued that the grandmother has no right to the custody of her minor sons under the Guardian and Wards Act, 1890. He further argued that the mother is a natural guardian of minor sons in comparison to maternal/paternal grandmother, therefore, she is entitled to the custody of her minor sons as discussed supra.

Learned counsel for the private respondents, has opposed this petition on the ground that in the custody matters the only Guardian and Wards Court has jurisdiction to regulate the custody of the minor; that the purpose of filing of this petition is achieved as the minor sons has been produced before this Court and now it is for the learned trial Court to decide in this regard. He asserted that the petitioner has failed to show that she was/is in such a position to take care of her minor sons with the same zeal and affection as that of a grandmother.

Admittedly, the minors namely, Muhammad Azan and Muhammad Ahan would require constant care; indeed, the petitioner-mother has developed an emotional attachment with the minor children and the issue of welfare of the minors has to be set at naught by the learned Guardian and Wards Court. It is well-settled law that paramount consideration while deciding the question of custody of the minor is the welfare of the minor irrespective of age, sex, and religion.

 Primarily, welfare includes his/ her moral, spiritual, and material wellbeing. While considering what is the welfare of the minor, the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian,  his/her nearness of kin to the minor, and the preference of the minor if he or she is intelligent enough to make it. On the aforesaid proposition, I am fortified by the decision rendered by the Honorable Supreme Court of Pakistan in the case of Humayun Hassan v. Arslan Humayun and another , PLD 2013 SC 557.

I am of the view that the purpose of filing this petition is served as the minor sons have been produced before this Court; and, prima-facie the minor sons are no more in illegal custody as discussed in the preceding paragraph.

Primarily, in the cases, concerning the custody of a child, this Court is not required to go into the intricacies/ technicalities of the matter in constitutional jurisdiction and should confine its findings to the extent of the welfare of the child/ minor which is a paramount consideration and it is for the learned Guardian and Wards Court to take appropriate measures in this regard.

After arguing the matter at some length, both the parties consented to the disposal of this petition on the premise that the petitioner shall approach the concerned Guardian and Wards Court for proper custody of minors, namely, Muhammad Azan aged about 5 years, and Muhammad Ahan aged about 4 years.

The controversy as raised by the parties needs to be looked into by the learned Guardian and Wards Court concerned for the custody of the Master Muhammad Azan and Muhammad Ahan, if approached and the decision thereof shall be made within a reasonable time, keeping in view the welfare of minor sons strictly in accordance with law. In the meanwhile, the learned family Court shall also take efforts to decide the issue of interim custody of the minors under the law.

In the light of the facts and circumstances mentioned above, the instant petition stands disposed of in the above terms.

                                                Judge