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Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD NASEER HUMAYON VS Respondent: Mst. SYEDA UMMATUL KHABIR
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Afzal Zullah, S. A. Nusrat Title: MUHAMMAD NASEER HUMAYON vs Mst. SYEDA UMMATUL KHABIR Case No.:Criminal Petition for Special Leave to Appeal No. 253 of 1985 Criminal
Miscellaneous No. 223/H of 1986 Date of Judgment:1987-10-22 Reported As: 1987 SCMR 174 Result: Petition dismissed Judgment ORDER MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from order dated 4-6--1986 of the Lahore High Court; whereby in Habeas Corpus proceedings a learned Single Judge of the High Court directed the handing over of the person of a minor daughter of less than 4 years of age by the petitioner (father) to the respondent (mother). Learned counsel relying on Mst. Mariam Rozina v. Robert Ashraf 1985 P Cr. L J 1469 contended that the questions between spouses regarding custody of minor children should not be decided by the High Court under section 491, Cr.P.C. Thus, as argued, the impugned order is without jurisdiction. The learned Judge in the High Court while agreeing that ordinarily the questions of Hizanat cannot be adjudicated in the Habeas Corpus petition, distinguished the cited case by observing that the parties therein were wedded in a marriage union while in the present case they have become strangers on account of the dissolution of the marriage. It is not necessary in the peculiar extraordinary circumstances of this case noted in the impugned order to decide the question of law raised by the learned counsel. The learned Judge in the High Court while entrusting the custody of the child observed "that the respondent or the petitioner, if so advised, may approach the Guardian Judge for determination of the final settlement of the custody of the child". This observation followed the remarks made by the learned Judge that apart from the welfare of the minor, the fact of husband having different faith will also have to be taken into account, when finally deciding the dispute about custody. After hearing the learned counsel we feel that it would not be fair to the minor child at this tender age to snatch her from her mother when according to the impugned order itself the parties are yet
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to get the matter resolved through the Guardian Court. Accordingly not finding it a fit case for grant of leave to appeal we dismiss this petition.