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Petitioner: Miss HINA JILANI, DIRECTOR OF A.G.H.S. LEGAL AID CELL VS Respondent: SOHAIL BUTT
Court Name: Lahore High Court Judge(s): Malik Muhammad Qayyum, Abdul Hafeez Cheema Title: Miss HINA JILANI, DIRECTOR OF A.G.H.S. LEGAL AID CELL vs SOHAIL BUTT Case No.:Criminal Appeal No,156 of 1994 Cr. A. No,156 of 1994 Writ Petition No,13571 of
JUDGMENT
Reported As: PLD 1995 Lahore 151 Result: Petition accepted Judgment JUDGMENT ' MALIK MUHAMMAD QAYYUM, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 491, Cr.P.C. Has been filed by Miss Hina Jilani, an Advocate of this Court, who is also Director of A.G.H.S. Legal Aid Cell, a Human Rights Organization praying for a direction in the nature of habeas corpus for recovery of Rukhsar, as minor girl aged about one year and her production before this Court so as to be dealt with in accordance with law. 2. The facts as gathered from the pleadings of the parties and the arguments addressed at the Bar are that Sohail Butt, respondent herein, who is a Pakistani National went to Tashkent, Uzbakistan for setting up business there. On 12-3-1993 he married Goulbakhor, a citizen of Tashkent. They lived there as husband and wife where a child was conceived. Later on in November, 1993, the respondent and his wife came to Pakistan where a daughter was born in November, 1993 who was named as Rukhsar. On 10-1-1994 Goulbakhar went to Taskhent from where she returned on 26-5- 1994. It appears that some disputes and differences had unfortunately developed between the spouses which resulted in dissolution of marriage by the respondent who served Goulbakhor with a notice of Talaq while she was residing Tashkent. It is alleged that on her return to Pakistan she was forcibly detained by the respondent and was maltreated by him. Ultimately she was taken to Islamabad and told to board a flight to Tashkent under the threat of death. She raised hue and cry which attracted the attention of the Air-port security staff who handed her over to Uzbekistan Embassy which brought these facts to the notice of the Human Rights Organisation of which the petitioner is a Director through Fax message on 14-11-1994 whereafter this petition was filed in which it was asserted that the minor child was being illegally detained by her father.
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3. When this petition came up for hearing before one of us (A.H. Cheema, J.) notice was issued to the respondent to produce the minor. In compliance with that order, the minor was produced on 29-11-1994 when arguments were heard by the learned Single Judge who keeping in view the importance and sensitive nature of the matter referred it to the learned Chief Justice for considering the desirability of constituting a Division Bench. The learned Chief Justice on the reference made by the learned Single Judge has constituted this Division Bench to hear the case. It may also be mentioned that on 29-11-1994, it was directed that the minor shall remain in the custody of the father who shall furnish two surety bonds and produce the minor on each date of hearing. 4. When the matter came up before the Division Bench on 6-12-1994, an adjournment was prayed for by the respondent which was granted. However, the mother was allowed to meet the minor everyday in Court from 11-00 a.m. To 4-00 p.m. Later on, after Court hours, it was brought to the notice of one of us that the mother after acquiring the temporary custody of the minor for the purpose of meeting her had refused to hand back the custody to the father and attempted to create law and order situation. In these circumstances, it was directed that the mother i,e, Guolbakhor be lodged in Darulaman from where she was produced on every date of hearing. 5. The Constitutional petition has been contested by the respondent by filing a reply in which various preliminary objections like lack of locus standi of the petitioner to file the petition and its non-maintainability have been raised. On merits, the claim of the mother for restoration of the custody has been disputed by pointing cut that a suit was filed by the mother for recovery of Rs,20,000 in which a compromise was arrived at between the parties in terms whereof the mother gave up her right to the custody of the minor. It was further stated that the minor was being properly looked after by the respondent and his mother i,e, paternal grandmother of the minor and as there is no forcible removal from custody, this petition was not maintainable. 6. The petitioner who has appeared herself has argued that the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and section 491 of the Cr.P.C. Can be invoked by any person and not necessarily by an aggrieved person and, therefore, the objection as to locus standi raised by the respondent has no force. She stated that the mother by swearing an affidavit has categorically denied having entered into any compromise or even filing the suit or appointing somebody as her attorney. It has been reiterated that deprivation of custody of the minor of tender age and that too of a girl renders the custody of the father as being illegal and this Court is possessed of jurisdiction both under Article 199 of the Constitution and section 491 of the Cr.P.C. To restore the custody to the mother. Reliance has been placed by the petitioner on the pronouncement of the Supreme Court in Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6), Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) and the judgments of this Court in Mst. Zubaida Khatoon alias Aqleema Khatoon alias Parveen v. Saadullah A. Siddiqui and 4 others (1992 PCr.Lf 690), Shagufta Andleep v. Abdul Razzaq and another (1992 PCr.LJ 2168), Mst. Zenia v. Ahmed Jawad Sarwar (PLD 1994 Lah. 577), Mst. Shabana Niazi v. Muhammad Khalilur Rehman (1994 PCr.LJ 715), Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri (1994 PCr.LJ. 1361). The petitioner has also placed a copy of unreported judgment of the Supreme Court of Pakistan in Criminal Appeal No,156 of 1994 which was decided on 3-7-1994. 7. It has been argued with great vehemence that under the Muslim Personal Law, custody of the minor girl lies with the mother as age of the minor was such that she needed utmost care and attention of the mother for which there was no substitute. 8. On behalf of the respondent, Mr. S.M. Masood, Advocate objected to the maintainability of the petition that a petition in the nature of a Habeas Corpus cannot be filed by a stranger moreso if the dispute is essentially between a husband and a wife or a parent of a child regarding his custody. In
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support of this submission, the learned counsel heavily relied upon Imdad Hussain v. Noor Hassan and 5 others (PLD 1974 Karachi 485). 9. As regards the merits, it was argued that it has been admitted by the mother herself that she intended to take the minor out of Pakistan to Tashkent which she could not, both under the Constitution and the law, be allowed to do so. It was emphasized that the minor having been born in Pakistan was a citizen of Pakistan by birth and as such cannot be removed from Pakistan in violation of Article 15 of the Constitution of Islamic Republic of Pakistan, 1973. He urged that the mother loses her right of Hizanat when the minor is removed to such a place where the father cannot exercise his right of supervision of custody. He reiterated that the father was, in law, the natural guardian of the minor and the mother can at the most claim to be custodian. In that behalf, the learned counsel cited Muhammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lah. 73), Mrs. Mosselle Gubbey v. Kh. Ahmad Said and others (PLD 1957 Karachi 50), Miss Christine Brass v. Dr. Javed Iqbal (PLD 1981 Peshawar 110), Mst. Musarrat Parveen v. Muhammad Akram (1991 PCr.LJ 878) and Mst Maria Khan v. Muhammad Zubair Khan (1993 PCr.LJ 1097). Reference was also made to section 39 of the Guardians and Wards Act, 1890 to show that the guardian who removes the minor to a place outside the jurisdiction of the Guardian Judge can be removed from guardianship. The learned counsel argued that there has been no forcible removal or illegal confinement of the minor who was living with the father after she was abandoned by the mother and in these circumstances, the jurisdiction under section 491 of the Cr.P.C. Cannot be invoked. 10. In reply, the petitioner has maintained that the restraint on a mother to take away the minor to a place where the father cannot supervise the custody, is not absolute but is subject to the exception that if the mother is forced by the circumstances to leave the father and to live separately and to return to the original place of her residence or to a place where the marriage itself had taken place; she cannot be prevented from doing so. The petitioner pointed out that the mother who is a young girl cannot be forced to live in Pakistan where she has no permanent place of residence/abode nor any relative to take care of her. Reference was made by the petitioner to the judgement in Marggarate Maria Puplarampil Nee Feldman v. Dr. Chacko Pulparampil and others (AIR 1970 Kerala 1). 11. We have given our anxious consideration to the facts of the case and the law on the subject. There cannot be any dispute and indeed both the petitioner and the learned counsel for the respondent are agreed that the jurisdiction exercised by this Court in respect of matters relating to custody of minor is more parental in nature than anything else. This dispute cannot be resolved on the basis of any technicality nor on any principle of law without completely divorced from the realities of the situation. In all matters relating to custody of minors the Courts Act in loco parentis. It is painful but nevertheless a legal duty which a Court must perform to regulate the custody of the minor in order to ensure his well being and welfare which is paramount dominant consideration. 12. In the present case the facts which cannot be disputed are that the respondent who is a Pakistani citizen had gone to Tashkent, Uzbekistan for the purpose of setting up his business. According to the learned counsel for the respondent, he had also purchased a house at Tashkent in the name of the mother as no foreign national is allowed to buy property in Uzbekistan. During the course of that stay in Tashkent which lasted for about one year and six months, he married Goulbakhor on 12-3-1993 who had at the relevant time was a student of a University, as stated before us by the petitioner. The parties lived together for some time at Tashkent as husband and wife and even the child was conceived there. The respondent has explained that unfortunately his business could not prosper and it was on account of compelling circumstances that he decided to come back to Pakistan alongwith his wife who at the time was pregnant. She gave birth to a daughter on 4-11-1993 though the date of birth according to the learned counsel for the respondent, is 19-11-1993. It is a common ground between the parties that the mother went back to
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Tashkent in January, 1994, though the reasons for doing so are disputed. The mother has sworn an affidavit that she was forced to go to Tashkent in order to bring some money to be paid to the respondent in order to secure the custody of the minor. The respondent, on the other hand, stated that she left of her own accord leaving the minor at Gujranwala. The next relevant fact is that in April, 1994 the marriage was dissolved by the respondent by sending Talaq to the mother at Tashkent. She obtained a Visa from the Pakistan Consulate on 26-5-1994 and returned to Pakistan on 29-6-1994. According to the petitioner, the mother was maltreated and physically tortured and was ultimately taken to Islamabad Airport by force and asked to board a plane for Tashkent where she raised hue and cry and was rescued by the Airport Security Staff and was handed over to the Uzbekistan Embassy which in turn approached the Human Rights Organisation's Director i,e, the petitioner who has filed this petition. 13. Without going deep into the matter, prima facie we find that the version putforth by the petitioner which is supported by the affidavit of the mother as also the Fax message received from Uzbekistan Embassy is entitled to greater credence than the version of the respondent. In the reply filed by the respondent no reasons as to why a mother had chosen to forsake her only child has been stated and we are, therefore, presently not in a position to accept the plea that she had abandoned the child of her own accord. We, however, purposely refrained from giving any positive finding on this aspect of the matter lest it may prejudice the case of either of the parties before the Family Court, if they so choose to go before it, which in law is the ultimate authority to regulate the custody of the minor. 14. While we appreciate the valuable assistance rendered to us by the petitioner and the learned counsel for the respondent who have also referred to almost entire law on the subject, it is not necessary to deal with each and every precedent cited by them as we feel that by now it is well- settled that the jurisdiction exercised by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and section 491 of the Cr.P.C. Is different and distinct from the jurisdiction of the Family Court under the Family Laws and that notwithstanding that a person may have a right to move the Guardian Court for the custody of the minor, but he can in appropriate cases also approach this Court for restoration of the custody of minor to the person to whom it rightly belongs. However, any arrangement made by this Court will be interlocutory and subject to final decision, if any, of the Guardian Court. We may in this behalf, refer to the pronouncement of the Supreme Court in the case of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) as also the judgment of the Supreme Court in Muhammad Latif v. Hiroku Muhammad (Criminal Appeal No,156/94, decided on 3-7-1994) wherein the following observations made by this Court in the judgment under appeal before the Supreme Court in that case which is reported as Hiroku Muhammad v. Muhammad Latif (1994 MLD 1682) were approved:-- "The law on the subject is now well settled. Although proceedings under section 491, Cr.P.C. Are summary in nature and no final decision can be rendered by the Court on the question of custody of the minor which has ultimately to be decided by the Guardian Judge/Family Court but nevertheless in exceptional cases where the removal of the minor from the custody of the petitioner is either through fraud, deceipt or by force and the welfare of the minor so requires, the Court can in appropriate matters interfere in the exercise of its jurisdiction under section 491, Cr.P.C. Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891, Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342, .Musarrat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686, Mst. Farzana v. Syed Muhammad Afzal and another 1991 PCr.LJ 758, Sara Palmer v. Muhammad Aslam 1992 MLD 520, Shaireen Abdullah v. Mahmood Akhtar PLD 1993 Lah. 466 and Mst. Nusrat Jehan v. Muhammad Siddique Khan and another 1993 PCr.LJ 522 refers. Reliance of the respondents learned counsel on Major Zafar v. Mst. Rehmat Jan and another 1994 SCMR 399 is of no avail as that decision was rendered in the proceedings which had arisen under the Guardians
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and Wards Act, 1890. Similarly, the case of Begaan v. Abdul Hamid 1983 PCr.LJ 1470 is distinguishable on facts as in that case it was found that the mother had remarried and had herself handed over the custody of the minor to the paternal uncle. Furthermore this decision was rendered at a time prior to the dictum of the Supreme Court in Muhammad Jailed Umrao's case (supra). So far as the cases of Mst. Mariam Rozina v. Robert Ashraf 1985 PCr.LJ 1469 and Lady Dr. Capt. Lubna Bokhari v. Syed Sabtain Raza 1992 MLD 1929 are concerned, they are not of much help as no detailed discussion on the subject was made and it was in the facts and circumstances of those cases that the learned Judges had declined to exercise their discretion in favour of the petitioners in those cases. These two decisions do not lay down that petition under section 491, 'Cr.P.C. Would not lie." 14. Mr. S.M. Masood, learned counsel for the respondent however, submitted that the above principle would not have any applicability to the present case as it has not been shown that the minor was removed by force from the custody of the mother by the respondent and that the only remedy available to her, if any, was to invoke the jurisdiction of the Family Court under the Guardians and Wards Act, 1890. 15. We are unable to agree with the learned counsel in this behalf for many reasons. Firstly, as observed by us, prima facie, the stand taken by the mother that she was forcibly deprived of the child appears to have greater weight than the contention on behalf of the respondent that she had voluntarily abandoned her. Furthermore, in cases relating to custody of minor it is not essential that forcible removal or detention must be proved by the mother. If the Court keeping in view the tender age of the minor and the principles of Muslim Personal Law come to the conclusion that the custody has been wrongly or illegally withheld from the parent, it can order the restoration of custody to her. This question was considered by Zia Mahmood Mirza, J. (as he then was) in Iffat Mir v. Mobeen Qasim Mir (1991 PCr.LJ 2372) in which it was observed that though father is a natural guardian of the minor but he cannot retain the custody forcibly and against the wishes of the mother who in law was entitled to the custody of the minor without obtaining proper orders of custody of the minor from a Court of competent jurisdiction. A Division Bench of this Court in Shabbir Hussain v. Mst. Shahnaz Parveen and another (1989 PCr.LJ 1689) has laid down that the remedy provided by section 491, Cr.P.C. Was more efficacious, speedy and appropriate as compared to the proceedings before the Guardian Judge and as the minor was a suckling baby, her welfare demanded that she should be restored to her mother who was entitled to get her custody under the Islamic Law unless she is debarred from doing so leaving the parties to have their rights decided from the Guardian Courts. Similar view was expressed by another Division Bench in Mst. Farrukh Naheed Hashmi, v. Syed Shah Ibrar Qadri 1994 PCr.LJ 1361 and also by the Sindh High. Court in Mst. Tayyaba Khan v. Syeda Begum and another PLD 1994 Karachi 204. 16. There is another way of looking at things. Under section 491 of the Cr.P.C. The High Court exercises two-fold jurisdiction; firstly, to direct the production of a person who is illegally detained to be brought before the Court so as to set him at liberty and secondly, to direct the production of a person so that he can be dealt with in accordance with law. In the latter case, it is not essential that the detention must be by use of force. If a person has been confined in a manner not warranted by law in that event also the Court can issue appropriate direction under section 491, Cr.P.C. This question was considered by the Supreme Court of Pakistan in Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6) wherein it was ruled as under:-- "The High Court has two-fold jurisdiction under this section : (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person."
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' The Supreme Court further went on to observe that if a person was a minor, the Court may make over his custody to the Guardian which will be dealt with him in accordance with law. 17. In Mst. Shabana Niazi v. Muhammad Khalilur Rehman and 2 others (1994 PCr.LJ 715) it was observed that if a minor is brought to the Court under section 491(1)(A), Cr.P.C. She has to be dealt with in accordance with law restoring her custody to the mother as the law presumes it to be in her interest. In Mst. Zubaida Khatoon alias Aqleema Khatoon alias Pal veen v. Saadullah A. Siddiqui and 4 others (1992 PCr.LJ 690) it was laid down that even if the minor was not illegally or improperly confined or detained yet the Court may make over the custody to the guardian which will be dealing with him in accordance with law. To the same effect is the judgment of this Court in Mst. Zenia v. Ahmad Jawad Sarwar (PLD 1994 Lah. 577). In this view of the matter the objection of the learned counsel for the respondent that this Constitutional petition was not maintainable has no force. 18. Before parting with this aspect of the matter, we may also state that the law does not appear to be different even in countries like United States of America and England where writ in the nature of habeas corpus has always been considered to be appropriate remedy for restoring the custody of the minor to a parent to whom it rightfully belong. Reference in this connection may be made to a statement of law appearing in Halsbury's Laws of England, Volume 1, paragraph 1469 which reads as follows:-- "Custody of minors.--A parent, guardian, or other person who is legally entitled to the custody of a minor can regain that custody when wrongfully deprived of it by means of the writ of habeas corpus. For the purpose of the writ, the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to an unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restraint or force is being used towards the minor by the person in whose custody and control he is for the time being." 19. In American Juriprudence, Volume 25, para. 78 it is stated that:-- "Determination of right to custody.--Habeas corpus is a proper remedy to obtain the discharge of an infant from a detention which is illegal and to determine controversies concerning the right to the custody of the infant, at least under the conditions requisite to the issuance of the writ generally. Where the writ is availed of for the latter purpose, the proceeding partakes of the incidents of a suit in equity and is considered to be one in rem, the child being the res. The right to invoke the remedy of habeas corpus to determine the right to the custody of a child in the Federal Courts depends, of course, upon whether the case comes within one of the recognised grounds of Federal jurisdiction. A Court without jurisdiction to make an order designating a permanent custody for a child may have jurisdiction to make a temporary order of custody as incidental to its power to administer the summary remedy of habeas corpus." 20. Reverting now to the merits of the case, it is to be seen that even Mr. S.M. Masood, learned counsel for the respondent was not in a position to dispute that ordinarily under Muslim Law, the mother has a right to retain the custody of a minor girl till she attains the age of puberty and a strong presumption arise that it is in the welfare of the minor girl to hand over the custody to the mother under the Muslim Personal Law. Indeed as has been often remarked by the Courts a lap of mother is God's own cradle and Almighty Allah has any created any substitute for it. It needs no gain saying that a minor girl and that too of tender age of one year requires care, attention, love and affection which a mother can alone bestow on her daughter. We are fully recognised that under the Islamic law the father is a guardian of both of the person as also the property of the minor but the fact remains that the custody of a minor of tender age and moreso, of a female vests in the mother and on the maternal side. It is only where the mother is found to be disqualified for any reason to retain the custody of the minor that she can be deprived of the right of Hizanat. Of course, the paramount consideration is always welfare of the minor but there is a strong
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presumption arising under the Muslim Laws that it is in the welfare of the minor daughter that she should remain in the custody of the mother. In the present case, the child is one year old and no reason whatsoever has been disclosed by the respondent either in the written statement or even during the course of argument which would persuade us to deny the mother of the right which vests in her under the Muslim Personal Law. We may also at this stage venture to refer to the dictates of Almighty Allah contained in Chapters 31-14, 15 (Surah Luqman) of the Holy Qur'an in which the right of the mother finds full recognition. 21. Learned counsel for…
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