ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, L.A.R.K.A.N.A.
C.P.NO.S-341 of 2024
Petitioner: Mst. Sana d/o Mujeeb Rehman Bughio
Through Mr.Rashid Ali Tunio, Advocate.
Respondents No.3 : Mst. Munawar Khatoon w/o Abdul Fattah Bughio in person.
Official Respondents: Through Mr. Munwar Ali Abbasi, Assistant Additional Advocate General, Sindh a/w Insp. Mir Muhammad Khoso, SHO P.S Warah..
Date of Hearing: 13.09.2024
Date of Order: 13.09.2024
O R D E R
KHADIM HUSSAIN SOOMRO, J.:- Through this petition, the petitioner seeks the following relief:
" This Hon'ble Court be pleased to:-
a) To issue Rule Nisi thereby directing the respondents No.4 and 5 to recover the petitioner's minor daughter, namely, Barira, aged about 04 years, from the illegal and improper custody of respondents No.1 to 3, and produce her before this Hon'ble Court and this Hon'ble Court be pleased to handover the custody of minor Barira to the petitioner, being her real mother.
b) To direct respondents No.3 to 6 to provide full legal protection to the petitioner and her children and parents against the ill wishes of respondents No.1 to 3.
c) To award costs of the petition.
d) To grant any other equitable and adulate relief to the petitioner in view of the above-stated facts and circumstances."
The facts of the instant petition are that the Petitioner, Mst. Sana contracted marriage with Respondent No. 1, Ali Shanawar Bughio, approximately nine years ago, resulting in the birth of two daughters, Baby Barira and Baby Haya Fatima. Subsequently, the relationship between the spouses deteriorated, and Respondent No. 1 subjected the petitioner to maltreatment over trivial matters, expressing dissatisfaction with the birth of daughters. Approximately seven to eight months ago, a minor dispute arose between the petitioner and Respondent No. 1, during which he physically assaulted the petitioner and subsequently expelled her from the home, along with their two daughters. On July 13, 2024, Respondents No. 1 to 3 visited the petitioner's parental home under the pretext of reconciling the dispute; however, after remaining for approximately four to five hours, they surreptitiously took the petitioner's minor daughter, Baby Barira, aged about four years. The petitioner attempted to recover custody of Baby Barira, who, due to her tender age, is unable to be separated from her mother; however, the private respondents refused to return the child to her mother. Consequently, the petitioner has serious concerns regarding the safety of her young daughter. Hence, this petition has been filed.
2. At the very outset, learned counsel for the petitioner submits that minor baby Barira, aged about four years, being a very tender age girl, cannot live without her mother, who is her natural guardian; custody of respondent No.3 is illegal and not warranted by the law; that the petitioner is the birth mother of tender age girl; that the custody of the minor has recently been snatched from the custody of petitioner i.e about one and half months back, therefore, he urged that the interim custody of minor baby Barira may be handed over to the petitioner until Guardians and Ward Court finally decide their issue.
3. Learned Asstt: A.G submits that the petitioner may approach the Guardian and Wards Court, and the instant petition is not maintainable as the petitioner has an alternate and efficacious remedy available to avail by filing an application under Section 12 of the Guardians and Wards Act in the court of competent jurisdiction.
4. I have heard arguments advanced by the learned counsel for the parties as well as respondent No.3 in person and have perused the material available on record.
5. The petitioner has filed the instant petition under the writ of habeas corpus for the recovery of her tender-age daughter, baby Barira, who is about four years old and seeking temporary custody. Before touching on the merit of the case, it will be very appropriate to define and discuss the scope of the writ of Habeas corpus. According to the Black's Law Dictionary (Ninth Edition) Page No:778. The word "Habeas corpus" is a Latin term that literally means 'you have the body' or 'produce the body. Black Stone and Erwin Chemerinsky referred to the writ of habeas as the most celebrated writ of English Law. The origin of the writ habeas corpus is quite old; its traces are found in the Magna Carta, also known as 'the Great Charter'. This charter was issued by King John (r. 1199-1216) and granted to barons as an antidote to the political turmoil he faced in 1215. This charter is considered one of the greatest common law documents, placing the foundational stone of constitutional liberties. The Magna Carta consists of 63 clauses.8 Clause 39 is relevant, which says that "No freeman shall be seized, or imprisoned, or stripped of his rights or possessions, or outlawed, or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so except by the lawful judgment of his equals and the law of the land".
6. Scope of Habeas Corpus-Halsbury's Laws of England asserts that the remedy of habeas corpus is accessible in both criminal and civil proceedings, provided that there is legally unjustified deprivation of personal liberty. While several historical applications of the writ hold limited contemporary significance, it has played a significant role in securing the freedom of enslaved aliens brought to the country in the past. In modern practice, applications to the High Court for writs of habeas corpus have been concerned primarily with:
(1) the committal or detention of prisoners;
(2) the detention of persons in pursuance of deportation orders and orders for the extradition or rendition of fugitive offenders;
(3) the detention of immigrants who have been refused leave to land in the United Kingdom;
(4) the detention of persons suffering from mental disorders;
(5) the legal right to the custody of minors.
8. Halsbury's Laws of England (Fourth Edition-Volume II), Page No:776, deals with habeas corpus with a specific emphasis on the custody of minors.According to Halsbury's Laws of England, if an individual with a legal entitlement to the custody of a minor, such as a parent or guardian, is wrongfully deprived of that custody, they can seek his/her restoration through the writ of habeas corpus. In the context of issuing the writ, the unlawful detention of a minor, when they are separated from the person legally entitled to their custody, is considered equivalent to the unlawful imprisonment of the minor. Therefore, in applying for the writ, it is unnecessary to allege that any form of restraint or force is being used against the minor by the person currently in custody and control of the minor.
9. According to Halsbury's Laws of England, if a person with the legal right to have custody of a child is unfairly denied custody, he/she can use the writ of habeas corpus to seek the child's return. In this context, a few selected paragraphs from Halsbury's Laws of England, Fourth Edition, Vol.24 are reproduced as under:-
(i) In the Halsbury's Laws of England, Fourth Edition, Vol.24 (para 511) that:
"511. ...Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father."
(ii) In McGrath, Re, (1893) 1 Ch 143, it was observed that:
"The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word 'welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well"
(iii) In Howarth v. Northcott (152 Conn. 460), the Supreme Court of Connecticut held that:
"The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statue, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate."
10. In Pakistan, habeas corpus proceedings concerning temporary custody of minors frequently favour maternal claimants, but it depends on the facts and circumstances of each case. Conversely, jurisdictions such as India, the United Kingdom, and the United States adopt varying approaches. The Supreme Court of the United Kingdom has historically exhibited a propensity to favour paternal custodial claims. In India, the Supreme Court mandates that for habeas corpus relief to be granted, the custodian must be proven to hold the child's custody unlawfully. Common law jurisdictions generally prioritize the child's welfare in custody determinations, often placing lesser emphasis on the emotional considerations of the involved parties, including the child. A few judgments of the aforesaid foreign courts are discussed as under:-
11. In the case of KL (A Child) [2013] UKSC 7518. This appeal pertains to an individual identified as K, born in the State of Texas and possessing United States citizenship. The child's parents, both U.S. citizens, experienced a breakdown in their marriage, leading to divorce proceedings in the Texas state court. Consent orders were made, granting the mother custody of the child while the father was posted abroad on military service. In 2008, without the father's consent, the mother took the child to London. In 2010, a custody hearing took place in the Texas court, where it was held that it was in the child's best interests to reside with the father and have contact with the mother. As a result, the child returned to the U.S. The mother then initiated proceedings under the Hague Convention in the U.S. Federal District Court, alleging that the child had been wrongfully retained in Texas by the father and that the child's habitual residence was in the U.K. The District Court sided with the mother, ordering the father to return the child and the child's passport to the mother. Subsequently, the mother returned to the U.K. with the child, where they have lived since. The father appealed the District Court's decision, and in July 2012, the U.S. Court of Appeals for the Fifth Circuit overturned the ruling, ordering the child's return to the U.S. However, the mother did not comply with the order, prompting the father to initiate proceedings under the Hague Convention in the U.K. On January 17 2013, the High Court judge dismissed the father's applications, and this decision was upheld on appeal to the Court of Appeal. The Supreme Court granted the father permission to appeal, focusing on whether the child had been wrongfully retained in the U.K. after the U.S. Court of Appeals' decision and whether the U.K. court should order the child's return to the U.S. under its inherent jurisdiction, even if not required by the Hague Convention.
12. The Supreme Court of India requires that the person currently holding custody of a minor child must have unlawful custody for the court to address and decide on the custody question in a habeas corpus case. Common law countries generally prioritize the welfare of the child more strictly, with less consideration for the emotional aspects of the parties involved, including the children. In the case of Nithya Anand Raghvan v. State (N.C.T. of Delhi) and another (2017) 8 SCC 454, the Supreme Court of India, while discussing different reported cases such as Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247, Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 S.C.C. 42, and Paul Mohinder Gahun Vs. State (N.C.T. of Delhi), 2004 S.C.C.On Line Del 699 addressed the issue of custody of a minor child in a petition for a writ of habeas corpus. The court emphasized that the principal duty of the court in such matters is to determine whether the child's custody is unlawful and if changing custody would be in the best interest of the child's welfare. The court highlighted that the welfare of the child should be the paramount consideration in these cases rather than solely focusing on the legal rights of the parties involved. The High Court, when dealing with a habeas corpus petition concerning a minor child, has the discretion to either order the return of the child or decline to change custody, taking into account all relevant facts and circumstances. It was emphasized that the decision of the court must depend on the specific circumstances of each case and the welfare of the child. The court also noted that the remedy of a writ of habeas corpus cannot be used solely for enforcing foreign court orders and that alternative legal remedies may be available for enforcing such orders. Finally, it was mentioned that if the private respondent in the petition is the natural guardian of the minor, it can be presumed that their custody is lawful. Custody may only be changed in exceptional situations deemed necessary for the child's well-being. In such cases, the other parent can be directed to pursue the appropriate legal remedy for seeking custody.
13. A review of case law from the Supreme Court of Pakistan indicates that the court has predominantly favoured mothers in custody disputes involving minors.However, it is crucial to recognize that each case is assessed based on its unique circumstances and with a focus on the best welfare of the child. The Supreme Court of Pakistan considers the well-being and best interests of the child as the primary factors in determining custody. Various elements, such as the child's welfare, emotional and physical needs, and the ability of each parent to provide a suitable environment, are taken into account. The case laws wherein the Supreme Court of Pakistan has decided in the favour of the mothers for the custody of minors are given as under:-
14. In the case of Raja Owais (2022 SCMR 2123), the honourable apex court has given custody of the minors to the mother based on the desire expressed by the children. The relevant part of the judgment is reproduced as under:-
"9. In this case, the Senior Civil Judge (Family Division) considered the welfare of the children based on their ages and gender. The mother is an educated woman running a private school. She lives in her own house and is able to care for the children. One of the factors that prevailed with the Senior Civil Judge was the wishes of the four children as they made their statement in court that they were desirous of living with their mother. In order to ascertain the desire of the children as of today, we asked each of the children, who are present in court, about their preference. We were informed by each of the children that they desired to live with their mother. We find that the children were confident and were able to easily express their wishes. The desire as expressed by the children is relevant particularly when the child is able to express his or her mind on preference. Although, this cannot be the sole factor, it is a relevant factor and we find that the Appellate Court totally ignored this aspect of the matter particularly with reference to Ummama Awais and Ayesha Awais, who of their own free will, left their father's home to reside with their mother on 15.11.2017 and have since been living with their mother"
15. In the case of Shazia Akbar Ghalzai (2019 SCMR 116), the honourable apex court has given custody of the minors to the mother. The relevant part of the judgment is reproduced as under:-
"5. Having heard the learned counsel for the parties we find that the minor was forcibly taken away from the lawful custody of his mother within the territorial limits of Islamabad. The minor was thereafter moved to Lahore and later to Karachi in order to evade the process of law. This minor is about one year old and obviously needs his mother to survive. No reason whatsoever has been alleged or pleaded that may furnish any justification to deny custody to the real mother and hand him over to Respondent No.l. Prima facie Petitioner has a right to have custody of the suckling baby. Such right is recognized by the law. We are also convinced that there are material and overwhelming factors pointing towards welfare of the minor being best served and protected, if the custody of minor is handed over to the petitioner. We are of the opinion that Islamabad High Court erred in law in refusing to exercise jurisdiction despite the fact that the custody of the child was forcibly taken away from the petitioner while both were residing within the territorial jurisdiction of the Islamabad High Court."
16. It was held by the honourable Supreme Court in Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) that section 491, Cr.P.C and the provisions of the Guardians and Wards Act, 1890, are neither mutually exclusive nor do they overlap or nullify one another. Consequently, issues pertaining to the permanent custody of a minor fall squarely within the jurisdiction of the guardian court as delineated by the Guardians and Wards Act 1890. Remedies provided under Section 491 of the Criminal Procedure Code (Cr.P.C.) are not applicable for the determination of permanent custody of a minor. However, courts are required to exercise their jurisdiction under Section 491 Cr.P.C. when a matter involving the treatment of a minor in accordance with the law arises, pending the guardian court's determination on the issue of permanent custody.
17. It was held by the honourable Supreme Court in Nisar Muhammad v. Sultan Zari (PLD 1997 SC 852) that the availability of a remedy under the Guardians and Wards Act, 1890 does not preclude the exercise of jurisdiction under Section 491 of the Criminal Procedure Code (Cr.P.C.). The mere existence of such a remedy does not constitute a valid basis for refusing judicial intervention in matters concerning the custody of a minor, particularly where a parent is otherwise not entitled to custody. In para. 9 of the said judgment, the following was held:
"In the judgment of Mst. Rizwana Bokhari's case (supra), Muhammad Munir Khan. J. (as his Lordship then was) had rightly laid down the law which we are inclined to approve that on examination of the various provisions of Muslim Law, the Criminal Procedure Code, particularly its section 491, Cr.P.C. and sections 361 and 363 of the P.P. C. indicate that mother is entitled to 'hizanat' of her male child below the age of 7 years, failing that the mother's relations under Muslim Personal Law are entitled to the custody of the minor. Since the two male minors in this case are admittedly below 7 years in age and the three females have not yet attained puberty all the three being less than 8 years, the respondent is, therefore, prima facie entitled to 'hizanat' of all the 5 for the limited purpose of section 491, Cr.P.C. at the moment and the rights of the petitioners to the custody of the aforesaid minors has not accrued so far. In these circumstances, the custody of the aforesaid minors with the petitioners was, therefore, rightly declared illegal or at least improper by the learned Chief Justice of the Peshawar High Court. The learned Chief Justice was also justified to have expressed more than once that ultimate determination of entitlement of the custody shall of course lie with the Guardian Judge to whom the parties were directed to approach, if they so desired."
18. In Naziha Ghazali v. The State (2001 SCMR 1782), a Petition under Section 491 of the Criminal Procedure Code (Cr.P.C.) was filed by the mother approximately six months after the cause of action arose. The Supreme Court, in its wisdom, observed that there was no adequate explanation provided for the delay in reporting the removal of the minor from the mother's custody. The court concluded that the minor's custody with the father was not illegal, particularly in the absence of any ongoing proceedings before the guardian court for the determination of permanent custody
19. It was held by the honourable Supreme Court in Khalida Parveen v. Muhammad Sultan Mehmood (PLD 2004 SC 1) that in exercising jurisdiction under Section 491 of the Criminal Procedure Code (Cr.P.C.), the court should eschew technical legalities and focus primarily on the welfare of the child. The court's primary objective should be to ensure that the rights conferred upon the child are adequately protected in a manner that serves the child's best interests.
20. It was held by the Honourable Supreme Court in Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 SC 758) that jurisdiction under Section 491 of the Criminal Procedure Code (Cr.P.C.) is to be exercised only in cases involving children of very tender age who have been recently removed from lawful custody, and where there is a genuine sense of urgency. In the above-cited case, the apex court served that the children were neither of tender age nor had they been recently removed from the mother's custody. Consequently, it was determined that the circumstances did not warrant the exercise of jurisdiction under Section 491 Cr.P.C.
21. The honourable Supreme Court of Pakistan, in the case of Mirjam Abberras Lehdeaho v. Station House Officer, Police Station Chung, Lahore and others (2018 SCMR 427), wherein it was held that:
"22. The Guardian Court is the final Arbiter for adjudicating the question of custody of children. However, where a parent holding custody of a minor lawfully has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody while the matter is sub judice before a Guardian Court. Therefore, in exceptional cases (like the instant case), where the High Court finds that the best interest and welfare of the minor demand that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the court is not denuded of jurisdiction to pass appropriate orders under section 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court. While the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the minor, the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffers owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting or refusing an order to restore interim custody by the High Court. The two provisions of law namely section 491, Cr.P.C. and section 25 of the Guardians and Wards Act deal with two different situations. As such, the question of ouster of jurisdiction of the High Court on account of provisions of section 12 or 25 of the Guardians and Wards Act or pendency of proceedings under the said provisions does not arise. There is no overlap between the two provisions as both are meant to cater for different situations, the first to cater for an emergent situation, while the latter to give more long term decisions regarding questions relating to guardianship of minors keeping in view all factors including their best interest and welfare."
22. Now turning towards 199(1)(b)(i)Constitutional Petition Habeas Corpus Writ of habeas corpus. The jurisdiction of a court hearing a habeas corpus petition concerning a minor differs from that in a standard habeas corpus petition, where the court primarily focuses on the recovery of an individual unlawfully detained to protect their right to life under Article 9 of the Constitution. Minors' rights under Article 9 of the Constitution include the right to be in the custody of the person legally entitled to custody until the minor reaches the age of majority. This custody can be maintained by parents, relatives, or the State. The court's role in a habeas corpus petition filed on behalf of a child extends beyond addressing illegal detention to ensuring that the interim custody of the minor, pending determination by a Guardian Court, is managed in accordance with legal standards. The jurisdiction of a court in adjudicating a habeas corpus petition involving a minor is distinct from that of a standard habeas corpus petition, which primarily aims to recover a minor unlawfully detained to protect their rights to life and liberty under Article 9. For a minor, the right to liberty under Article 9 includes the right to be in the custody of the legally designated custodian until the minor reaches the age of majority. This custody may be maintained by parents, relatives, or the State. Therefore, the court's role in a habeas corpus petition on behalf of a child extends beyond addressing illegal detention to ensuring that the interim custody of the minor, till a decision by a Guardian Court, permanent order is in respect of custody of the minor is made.A habeas corpus petition filed concerning the lawful treatment of a minor should not be conflated with issues of abduction or the illegal detention of an adult. In such matters, the primary consideration is the welfare of the minor, as recognized under common law jurisdictions.
23. This court, vide orders dated 05.9.2024 and 12.9.2024,directed respondents No.4 and 5 to recover and produce Baby Barira, aged about 4 years. In compliance with the aforesaid order, S.H.O. P.S. Warah has produced Baby Barira, who is a tender-age baby and has recently been removed from the custody of the petitioner. The petitioner, who is the real mother of the minor girl and has exclusive rights of hizanat to keep the minor girl with her, consequently, the temporary custody of the aforesaid minor is handed over to the petitioner; however, Respondent No.1, father of minor baby Mst. Barira may exhaust, and he may approach the Guardian and Wards Court for a final determination of the regular custody of the minors.
24. The petitioner present before this court apprehends that in case an appropriate order for protection has not been passed, the private respondents will again snatch her baby by dint of force, and she requests for protection in accordance with the law.
25. Before parting with the order, the S.H.O. P.S. Waleed Larkana is hereby directed to provide protection to the petitioner, minor daughters and her parents. Such compliance reports should be submitted through the Additional Registrar of this Court. The office is directed to communicate a copy of this order to the office of the Additional Advocate General, Sindh, as well as the Additional Prosecutor General, Sindh, Senior Superintendent of Police (S.S.P.), Larkana, and S.H.O P.S Waleed for correspondence and compliance.
26. In view of the above, the instant petition is disposed of.