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Petitioner: MUHAMMAD YAQOOB VS Respondent: PROVINCE OF SINDH through Secretary Home Department, Karachi and 7 others
Court Name: Appellate Tribunal Sindh Revenue Board Judge(s): Agha Faisal Title:MUHAMMAD YAQOOB vs PROVINCE OF SINDH through Secretary Home
Department, Karachi and 7 others Case No.: Constitutional Petition No. S-2070 of 2017 Date of Judgment:2018-03-02 Reported As: 2019 YLR 1507 Result: Petition dismissed Judgment ORDER AGHA FAISAL, J.---The present petition has been filed against the impugned order dated 15.11.2017 (hereinafter referred to as the "Impugned Order") , passed by the learned Sessions Judge, Hyderabad, in Criminal Miscellaneous Application No.328 of 2017, filed under Section 491, Cr .P.C. The relevant portion of the Impugned Order is reproduced herein below: "It is settled principle of law that paramount consideration being welfare of the minors the applicant being real mother is entitled to the custody of her minor daughter and she had been unlawfully snatched from the custody of applicant. Minor being in custody of Opponent No.1 for about one year, possibility of her brain wash or harassment caused to her could not be ruled out and her preference to live with the Opponent No.1 could not be termed as ' an independent and intelligent preference. Such issue could only be decided by the Guardian Judge and not by this Court under the summary jurisdiction under section 491, Cr.P.C. The reference in this contest is placed on the case of Mst. Sarwar Kalhoro v . Mukhtiar Ali Kalhoro , reported in 1999 PCr .LJ 171 1. I am also fortified by case law reported in 2017 MLD 427 (Sindh) (Re-Shanza Ali v. Aamir Shujaat and 2 others ) wherein it has been observed as under:- "It is now well-settled principle of law that jurisdiction of Courts under the Guardian and Wards Act, 1890, in respect of the custody of minors and for recovery/production of minors under section 491, Cr. P.C. are entirely different and there is no question of one excluding the other , overlapping the other or destroying the other in as much as, there is not repugnancy between the said two provisions. The provisions of section 491, Cr.P.C provide efficacious and speedy relief for release of the persons kept under illegal and improper custody . In the matter pertaining to custody of minors of tender age, this court is empowered to issue directions under section 491. Cr. P. C. and can pass an
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order regarding temporary custody without prejudice to the right of parties for final determination of the dispute pertaining to custody of minors by the Guardians and W ards Court." In above case in hand admittedly , Opponent No.1 having first wife, therefore, this Court is empowered to pass appropriate order , ensure that the rights conferred upon the minor child be fully protected in a suitable manner , particularly when minor is of tender age and the Habeas Corpus petition in such cases is held maintainable and the reliance in this regard is placed upon 2017 MLD 427 (Sindh) (Re-Shanza Ali v. Aamir Shujaat and 2 others ) wherein it has been held that mother had the preferential right to "Hizanat" (temporary custody of the minors) till the minor attains the age of puberty in the above case of female child. Admittedly , the Opponent No.1 is married with a lady stranger to minor and thereby applicant compelled to seek custody of minor and the contention raised by counsel for Opponent No.1 she herself left the minor with the Opponent No.1 by consent would be no ground to deprive the applicant being real mother because the consent or any sort of agree ment with regard to the custody and Guardianship of minors is not a valid agreement and could not be enforced and had no binding force in the eye of law as held in above referred case law reported in 2017 MLD 427 . I am also fortified by case law reported in 2016 PCr.LJ 44 [Lahore] (Re-T ahira Parveen v. Station House Officer Police Station Mansoorabad, District Faisalabad ) wherein it is held that father was living with his first wife, thus, it would not be appropriate to send the minor in laps of step mother , likewise in above case in hand Opponent No.1 being father residing with his first wife, therefore, the custody of minor with father at this juncture is improper and illegal particularly when the applicant having right of "Hizanat" to keep the custody of minor baby Mariyam. In view of above facts and circumstances and relying on the case law quoted hereinabove, the custody of minor Mariyam is handed over to the applicant being their real mother subject to execution of P.R. Bond in the sum of Rs.1,00,000/- (One Lac rupees) with direction that the custody of minor should not be transferred/removed from her home District Matiari. However , Opponent No.1 if intends to seek her custody , he is at liberty to move the Guardian and W ards Court having jurisdiction.Consequently ,the above application stands disposed of. 2. The relief sought in the present petition is delineated herein below: "a) That, this Honourable Court may, be pleased to declare the order dated 15.11.2017 passed by learned . Sessions Judge, Hyderabad, in Cr. Misc. Application No.328 of 2017 under section 491, Cr.P.C. Re: Mst. Shahzadi v. Muhammad Yaqoob and others as null, void ab initio, unlawful and without-lawful jurisdiction and same may be set aside. b) That, this Honourable Court may be pleased to direct the respondent No.4 to recover minor baby Mariyam daughter of Muhammad Yaqoob from the custody of respondents Nos.6 to 8, produce her before this Honourable court and custody of the minor may be handed over to petitioner being real father and natural guardian of minor baby girl. c) That, this Honourable Court may be pleased to direct the respondents Nos. 2 and 5 to provide legal protection to the petitioner and his family inmates and ensure that no harassment as well as harm shall be caused to petitioner at the hands of respondents Nos. 6 to 8. d) Any other relief which this Honourable Court deems fit and proper may please be awarded to the applicant. 3. The facts of the case are as follows: (i) The petitioner got married to the respon dent No.6 on 21.02.2008 and together they had a baby girl, age 04 years at the time of the institution of the present petition. (ii) The marriage of the petitioner and the respondent No.6 was dissolved vide judgment dated 20.05.2017, by the learned Court of the Civil and Family Judge-I, Hala, in Family Suit No.10 of 2017 filed by the respondent No.6 against the petitioner . (iii) The issue regarding the custody of the minor appear to have become content ious between the petitioner and the respondent No.6 and the said differences resulted in Criminal Miscellaneous Application No.328 of 2017 being filed before the Court of the learned* Sessions Judge, Hyderabad, under Section 491, Cr .P.C. (iv) The learned Sessions Judge landed over the temporary custody of the minor girl to the mother , subject to the imposition of conditions and directed that such temporary custody shall be subject to the final determination of the matter before the Guardian and W ards Court having appropriate jurisdiction.
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(v) The petitioner has filed the present petition after having been aggrieved by the aforesaid order , yet has already instituted a Guardians and Wards Application in respect of the minor mentioned herein before the Court of the learned Family Judge-I Hala, being Guardian Application No. 14 of 2017. 4. The learned Counsel for the petitioner stated that notwithstanding the fact that the custody of the minor was a matter already pending before the Court of appropriate jurisdiction, it was imperative that the Impugned Order be set aside and that the temporary custody of the minor be given to the petitioner , and not to the respondent No.6 who is the real mother of the minor girl. 5. The learned Counsel cited the case of Mst. Nadia Perveen v. Mst. Almas Noree n and others , reported as PLD 2012 Supreme Court 758, and drew the Courts attention to the following passage: "It has consistently been held by this Court in the cases of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891 ), Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852), Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1) and Nazhia Ghazali v. The State and another (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 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. In those cases this Court had repeatedly emphasized that in such matters the jurisdiction of a High Court under section 491, Cr.P.C. is to be exercised, sparingly and such exercise may be undertaken only in exceptional and extraordinary cases of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minor children and regulating their interim custody . In the case in hand the petitioner's children were neither of very tender ages nor had they been snatched away from the petitioner and, thus, the petitioner's petition filed before the Lahore High Court, Lahore under section 491, Cr.P.C. was misconceived. The interim order passed by this Court in connection with the present petition on 20.12.2010 shows that on 7.4.2010 the learned Guardian Judge, Sialkot has already appointed the paternal grandmother of the minors as the guardian of their persons and properties. We have been informed that the said decision of the learned Guardian Judge has not so far been assai led by the petitioner before any higher court. In this view of the matter we have failed to find any occasion for interference in the matter . This petition is, therefore, dismissed and leave to appeal is refused." 6. The learned Counsel further cited the case of Naziha Ghazali v. The State and another , reported as 2001 SCMR 1782 , and placed the reliance on the following passage: "On perusal of the record, it would appea r that the petitioner has alleged in the criminal miscellaneous application that the respondent fortibly took away the minor Shahrukh Ghazali in the third week of June, 1999. The respondent has stated in paragraph 10 of his counter -affidavit that he took his son with the consent of the petitioner and shifted him to the house of his parents in the last week of May, 1999 where he has been residing and that the petitioner enjoyed free and unhindered access to the minor and she has cordial relations with his family and she has been visiting respondent's house regularly . In paragraph 12 of the counter -affidavit , the respondent has denied that he was illegally detaining the minor . It is an admitted position that the minor is in the custody of the respondent either from May or June, 1999. The application under section 491 Cr. P. C. is admittedly filed by the petitioner on 25th November , 1999 i.e. after 5/6 months, alleging unlawful removal of the minor from her custody . There is no explanation as to why the petitioner kept quiet for such long period if the minor son was removed illegally by the respondent. If the minor was removed from her custody unlawfully and without her consent, in the normal circumstances, she would have either filed report with the police or made a compl aint to the concerned authorities against the respondent in accordance with law. It would prima facie appear from the said conduct of the petitioner that the minor was not removed forcibly from the apartment by the respondent, therefore, ex facie it cannot be said that the custody of the minor with his father , the respondent, was illegal or unlawful within the meaning of section 491, Cr.P.C. We are informed that no proceedings under the Guardians and Wards Act are pending before the Family Court. In the circumstances, there is no question of giving away the regular custody of the minor to either of the parties declaring any of them as a guardian under section 7 read with sections 12 and 25 of the Guardians and
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Wards Act, considering that under section 491, Cr.P.C. Court has considered if the person who is required to be produced has been illegally or improperly detained, whereas under the Guardians and Wards Act, the custody of the person of the minor is to be given to a person when it is in the welfare of the minor by appointing or declaring him to be guardian of the said minor which fact is to be determined by Guardian Court. The provisions of section 491, Cr.P.C. are not available for declaring any person as guardian or for determining all the time questions of custody of the minor because the final decision of the regular custody is to be decided in the proceedings under the Guardians and Wards Act when initiated by the party claiming the custody of the minor before the Guardian Court. The facts of the cases cited by the learned counsel for the petitioner are quite different and distinguishable from the facts of the instant case, therefore, same are not of any help to the petitioner . In the circumstances, it cannot be said that the settled law of this Court has been unset by the order of the learned single Judge of the High Court. 8. In view of the reasoning stated above, we find no merit in this petition, consequently leave is refused and same is hereby dismissed. However , in the circumstances stated the respondent is directed to regularly leave the minor namely Shahrukh Ghazali with his mother the petitioner , from the evening of every Friday till the evening of ever Sunday of every week and the petitioner would return the said minor to the respondent on Sunday evening of every week without fail. It is further ordered that none of the parties shall remove the said minor out of city without prior permission of the Court. The entitlemen t to the custody of the minor on regular basis would depend upon the adjudication by the Guardian Court in accordance with law. With the above observation leave to appeal is refused and the petition is dismissed." 7. The learned Counsel also cited the case of Mrs. Rania Ibrahim Qureshi v. District and Sessions Judge, Abbotabad and 02 others , reported as 2011 PCr.LJ 594, wherein the Honourable Peshawar High Court had maintained as follows: "6. Precisely allegation levelled against respondent No.2 is that petitioner was deprived of custody of minor children three weeks ago when he along with companions forcibly snatched them, howeve r, fact is to the contrary in that it has been specifically asserted in Para-3 of Writ Petition that a few weeks ago, she was expelled from the house by respondent No.2 along with minors hence it does not appeal to common sense that the children were snatched. Else, it appears to material, whatsoever , to even remotely suggest that there existed any element of snatching minors on the part of respondent No.2. 7. Facts and circumstances of the case indicate that Petition is, in fact, an attempt to obtain custody of minors' although minors who time and again appeared in court were absolutely hale, hearty and quite comfortable in father's company . Claims and counter claims regarding suitability to retain custody and/or affluence, social status, background and emotional suitability were matters which essentially were to be decided by the competent Court under Guardians and Wards Act after recording evidence to this effect. The moreso, question as to whether custody of minors was snatched from petitioner by the father or for that matter petitioner voluntarily deserted the minors to be left in custody of father also needs evidence and all these questions cannot be resolved by resorting to remedy either under section 491, Cr .P.C. or Article 199 of Constitution of 1973. 8. We are mindful of the fact that proceedings in the shape of Habeas Corpus are summary in nature so as to resolve controversy in respect of illegal and improper detention of a person in public or private custody by police or a private person and the High Court is invested with powers to cause production and release of detenue but whenever dispute pertains to custody of minors in between the parties in general and husband and wife in particular , recourse to summary procedure is seldom available in that the parties can legitimately lay their respective claims under the Guardians and Wards Act hence provisions of section 491, Cr.P.C. and Art.199 of Constitution cannot be invoked. Viewing the matter from each and every angle, redressal of grievances of petitioner in given circumstances is not possible through intervention of this Court in exercise of Constitutional jurisdiction hence order passed upon application by the Court of Session is unexceptionable warranting no interference. As a sequel to above discussion, there being no merit in instant petition is hereby dismissed and interim order handing over custody of minors to petitioner is recalled."
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8. It was argued on behalf of the petitioner that the Impugned Order is liable to be set aside or in the alternative modified to grant the temporary custody of the minor to the petitioner and that it should be the respondent No.6, real mother of the minor girl, who should institute an appropriate guardians and wards application before the Court of appropriate jurisdiction, wherein the ultimate custody of the minor may be determined. 9. In response, it was contended by the learned Counsel for the respondent No. 6 that the said respondent was the natural guardian of the minor baby girl under the settled principles of Hizanat'. 10. In this regard, the learned Counsel submitted that there is no cavil to the proposition that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 'seven years and of her female child until she has attained puberty . 11. It was then contended by the learned Counsel that the learned Sessions Judge was duly empowered to determine the issue of temporary custo dy of the minor girl, pending final determination by the appropriate Guardians and W ards Court, and in regard thereof relied upon the following authorities of the Superior Courts: (1) 2017 MLD 427 (Shanza Ali v. Aamir Shujaat and 2 others) 39. So far as the first point for determination is concerned, it is now well settled principle of law that the jurisdiction of Courts under the Guardians and Wards Act, 1890, in respect of the custody of minors and for recovery/production of minors under Section 491, Cr.P.C are entirely different and there is no question of one excluding the other , overlapping the other or destroying the other in as much as there is no repugnancy between the said two provisions. The provisions of Section 491, Cr.P.C, provide efficacious and speedy relief for release of the persons kept under illegal and improper custody . In the matters pertaining to custody of minor of tender age, this Court is empowered to issue directions under Section 491, Cr. P. C. and can pass an order regarding temporary custody without prejudice to the right of the parties for final determination of the dispute pertaining to the custody of minors by the Guardians and W ards Court as has been held in the following case laws:-- i) Mst. Zarmeen v . Dr. Omer Mohayuddin Sheikh and others (2013 MLD (Lahore) 1640); ii) Mst. Saima Bibi v . Raheel Butt and 3 others (2014 MLD (Lahore) 38 ) iii) Mst. Abida v . S.H.O., Ratodero Police Station (District Larkana) and 3 others (2014 YLR (Sindh) 705 ); iv) Mst. Reema v . S.H.O., Police Station Dari, Larkana and 4 others (PLD 2014 (Sindh) 598 ); v) Saima Noreen v . The State and others (2015 MLD (Lahore) 833 ); vi) Karam Khatoon v . Senior Superintendent of Police, District Khairpur and 8 others (2016 MLD (Sindh) 28). 10. In view of the above settled principle of law, I hold that this application under Section 491, Cr. P. C. is maintainable and this Court is empowered to pass appropriate orders to ensure that the rights conferred upon the minor child are fully protected in a suitable manner in the exercise of its inherent jurisdiction more particularly when the minors are of tender age as in this case the minor baby is below the age of two years. 11. Now the second point for determination is in two folds namely (1) whether an agreement between parties regarding custody and guardianship of minor being contrary to Muslim Law is enforceable in law? and (2) whether the mother of minor after executing such agreement has lost the right of "Hizanat"? According to the Muslim Law, mother has the preferential right to "Hizanat" (temporary custody of the minor) till the minor attains the age of seven in the case of male and the age of puberty in the case of a female. It is an established principle of law that an agreement with regard to the custody and guardianship of minors is not a valid agreement and cannot be enforced and has no binding fore in the eyes of law as has been held in the following case laws:-- i) Mst. T ahera Begum v . Saleem Ahmed Siddiqui (PLD 1970 Karachi 619 ); ii) Afshan Noureen v . Nadeem Abbas Shah (1997 MLD (Lahore) 197); iii) Mst. Razia Rehman v . Station House Officer and others (PLD 2006 Supreme Court 533); iv) Dr. Fouzia Haneef v . Dr. Raashid Javaid and 2 others (PLD 2010 Lahore 206 ); v) Mst. Abida v . S.H.O., Ratodero Police Station (District Larkana) and 3 others (2014 YLR (Sindh) 705 ); (vi) Saima Noreen v . The State and others (2015 MLD (Lahore) 833 ). 12. In view of the settled principle of law laid down in the above-noted case laws, I hold that the agreement dated 01.09.2014 between the petitioner and the respondent No.1 regarding custody of minor Fatima being in derogation
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of Muslim Law is null and void and hence cannot be enforced under any circumstances, consequently , the petitioner being the real mother of the minor Fatima has right of "Hizanat". 13. There is another aspect of the matter which 1 noticed that the stamp paper for the said agreement was purchased on 29.08.2014 and it was typed on computer . This fact establishes without any doubt that the respondent No.1 has already managed to take away the custody of the minor Fatima immediately after the delivery from the petitioner in hospital. This agreement, on the face of it, appears unconsc ionable as the petitioner was in the hospital and accordingly there is a rebuttable presumption that the said agreement was entered into by coercion and undue influence. No effectiv e rebuttal is forthcoming to show as to why the petitioner would voluntarily part with her minor daughter immediately after birth. My this considered view is fully supported by the case of Mst. Shehnaz Bibi v . Muhammad Akram and others (1995 PCr .LJ (Lahore) 307). 14. There is yet another case of Shoukat Masih v. Mst. Farhat Parkash and others (2005 SCMR 731) wherein, the Hon'ble Supreme Court of Pakistan has cancelled the guardianship certi-ficate and directed the learned Guardian Judge to consider application submitted before him regarding custody of the relevant minor as a pending application and then to decide the matter afresh after attending to all the jurisdictional, legal and factual issues and during the interregnum the custody of the minor shall remain with her mother . 15. I also took judicial notice of the fact that minor baby Fatima is below two years of age and accordingly it is her fundamental right of being fed from the breast of her mother for at least two years in view of the settled principle of Muslim Law that minor who comes out of womb of the mother has a fundamental right of being fed from the breast of his/her mother and no person can deprive minor of this supreme and fundamental right. Thus, the said agreement dated 01.09.2014 is ab-initio illegal, null and void Having no legal effect whatsoever . 16. Admittedly , baby Fatima is below two years of age and certainly would need constant care of mother and it is a universal truth that there cannot be any substitute for a mother and that the lap of mother is God's own cradle for a child and hence the custody of minor Fatima with the respondent No.1 is improper if not illegal." (ii) 2016 PCr .LJ 44 ( Tahir Parveen v . Station House Officer , Police Station Mansoorabad, District Faisalabad . "6. After considering the contentions made by learned counsel for the parties, this court is of the opinion that all the arguments raised by learned counsel for respondent No.2 are not related to the instant proceedings rather the same could be raised validly before the learned Guardian Court in a petition which can be filed under section 25 of the Guardians and Wards Act, 1890. In the instant proceedings, it is only to be seen whether the custody of the father of the minor is improper or illegal. The minor is having the age of 5-1/2 years and she was…
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