Law on 491 crpc custody of minor.

Law on 491 crpc custody of minor. By MUJJAN ALI PANHWAR

Citation Name : 2016 SCMR 1287 SUPREME-COURT
Side Appellant : Mst. TANVEER BIBI
Side Opponent : SHO POLICE STATION MANDI BAHAUDDIN
S. 491 ---Habeas corpus petition---Recovery and custody of minor children---mother of minors alleged that their father was working abroad, and in his absence her in-laws turned her out of the house and also snatched the minors---Minors looked happy and content when they met their mother in court---Nothing had been stated by the in-laws as to why the mother had to leave the house---Minors were of tender age and in the absence of their father, who had gone abroad, the mother was legally entitled to their custody, who was living with her father and brother---Keeping in view the welfare and best interest of the minors their custody was delivered to their mother .

Citation Name : 2016 PCrLJ 44 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TAHIRA PARVEEN
Side Opponent : STATION HOUSE OFFICER, POLICE STATION MANSOOR ABAD, DISTRICT FAISALABAD
S. 491 ----Petition for direction in nature of habeas corpus---Custody of minor---Principles---Locus standi of adoptive parents---mother claimed custody of minor alleging that father of minor had snatched minor from her lawful custody---Father took plea that petitioner had no locus standi to file present petition as she had adopted minor from her real sister---Validity---In the present case, it was only to be seen whether custody of minor with father was proper or illegal---Although, custody of minor with father could not be termed as illegal as father was also adoptive parent, but his custody was improper as mother enjoyed right of 'Hazanat' of minor and she was living apart from father of minor---As father was living with his first wife, thus it would not be appropriate to send minor in laps of step mother ---mother , on the other hand, had not remarried, thus she was able to look after minor properly---Real mother of minor stated before court, that minor, since her birth, had been happily living with her sister, petitioner---Statement of real mother was sufficient to brush aside contentions of father---Father was bound to provide all those facilities to child in the house of mother , which minor had enjoyed while living with him---High Court ordered custody of minor to be handed over to mother ---Petition was allowed accordingly.

Citation Name : 2016 YLR 1364 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. KHUSHBOO
Side Opponent : STATION HOUSE OFFICER
S.491 ---Habeas corpus petition---Custody of minor---Custody of minor daughter of tender age of less than two years---Respondent/father was alleged to have forcibly snatched the minor daughter from the petitioner/mother ---Minor, being of tender age of less than two years, would need constant care of her mother ---Custody of the minor female child of such tender age with the father was improper----High Court observed that there could be no substitute of mother for the minor---Custody of minor was, therefore, handed over to the mother ---Petition was allowed accordingly.

Citation Name : 2016 MLD 29 KARACHI-HIGH-COURT-SINDH
Side Appellant : KARAM KHATOON
Side Opponent : SENIOR SUPERINTENDENT OF POLICE, DISTRICT KHAIRPUR
S. 491 ----Application for restoration of custody of minor---Minor girl aged four years was forcibly removed from mother ---mother 's right to restoration of custody---Scope---mother filed criminal miscellaneous application seeking restoration of custody of four years old minor daughter claiming that she, having been ousted by her husband from his house, was living at her parents' house along with minors, and her husband had forcibly snatched minor daughter---mother contended that she had preferential right of custody of minor, who was in tender age---Father took plea that he being legal guardian of minor had superior right to retain custody of the minor, and that mother had no sources to provide good education and take care of welfare of minor---Validity---Provisions of S. 491 , Cr.P.C provided efficacious and speedy relief for release of persons kept under illegal or improper custody and was to be exercised without prejudice to right of parties to have matters finally adjudicated from guardian judge---Custody of minor, who was aged about four years, with father appeared to be irregular and improper---Minor being of tender age needed constant love, care and affection of her mother and no person was substitute of the mother ---Court accepting application, directed father to hand-over custody of minor to her mother , while mother was directed to make minor accessible to father for periodical meetings---Application was accepted accordingly.

Citation Name : 2015 SCMR 731 SUPREME-COURT
Side Appellant : SHAUKAT MASIH
Side Opponent : Mst. FARHAT PARKASH
S. 491 ---Guardians and Wards Act (VII of 1890), Ss. 7 & 10---Civil Procedure Code (V of 1908), O. IX, R. 13---Constitution of Pakistan, Art. 187(1)---Custody of minor---Ex parte proceedings---Guardianship certificate---Power of Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in a case involving custody of minor---Scope---Paternal grandfather of the minor obtained guardianship certificate through ex parte proceedings without disclosing to the court that mother of minor was still alive---mother of minor, who was unaware of the guardianship certificate, filed a habeas corpus petition before the High Court claiming custody of the minor---Habeas corpus petition was allowed by the High Court despite the existence of guardianship certificate in favour of paternal grandfather on the ground that said certificate had not been obtained in a bona fide manner and, thus, by ignoring the guardianship certificate the High Court ordered transfer of the custody of the minor from the paternal grandfather to the mother ---Legality---mother of minor had not filed any appeal against the order passed by the Guardian Judge nor had any application so far been filed by her before the Guardian Judge seeking recalling of the ex parte order and reconsideration of the matter on its merits---By way of order passed by the High Court a minor had been given in the custody of her real mother and even if there were some questions regarding proper exercise of jurisdiction by the High Court in the matter still the Supreme Court would not like the minor to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody---Under Art. 187(1) of the Constitution, the Supreme Court could issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it---Supreme Court by invoking its jurisdiction under Art. 187(1) of the Constitution in the present case set aside the order passed by the Guardian Judge, and cancelled the Guardianship certificate and directed the Guardian Judge to consider the application for guardianship certificate submitted by the paternal grandfather as a pending application, and to hear all the parties concerned, including the mother of the minor, and then decide the matter of custody afresh after attending to all the jurisdictional, legal and factual issues relevant to the controversy raised by the parties---Supreme Court further directed that during the interregnum the custody of the minor shall remain with the mother and the Guardian Judge shall attend to the request, if any, made regarding visitation rights---Petition was disposed of accordingly.

Citation Name : 2015 YLR 1765 LAHORE-HIGH-COURT-LAHORE
Side Appellant : GULL ARZOO
Side Opponent : STATION HOUSE OFFICER BZ, DISTRICT, MULTAN
S. 491 ---Habeas corpus petition---Custody of suckling minor---Jurisdiction of High Court and Sessions Court---Scope---Exercise of paternal jurisdiction---Welfare of minor paramount consideration----mother filed petition for recovery of minor daughter which was in the custody of father---Contention of father was that he had moved an application under S. 25 of Guardians and Wards Act, 1890 and Guardian Court had restrained the mother from illegally snatching the minor from his custody---Validity---mother filed an application on 18-7-2014 before Sessions Court under S.491 , Cr.P.C. wherein Station House Officer was directed to produce the detenue before the court on 19-7-2014 on which father made statement that alleged detenue had gone to place "X" but on the same day detenue was brought before the Guardian Court and interim order was obtained---Mala fide on part of father was on record as he did not produce the detenue before the Sessions Court while making a mis-statement that detenue had gone to place "X"---If minor child was produced before Sessions Court then said court would have been left with no other option but to hand over the custody of a suckling child to her mother ---High Court while exercising paternal jurisdiction with regard to the matter of custody of minor/suckling baby was to perform such a legal duty in order to ensure the well being and welfare of a minor child---Order passed by Guardian Court or pendency of petition for custody of minor was no bar on decision of an application under S.491 , Cr.P.C. on merits---No substitute of real mother existed and minor girl could be brought up properly by mother only and her custody with anyone except the real mother was improper---High Court and Sessions Court had concurrent jurisdiction under S. 491 , Cr.P.C.---Paramount consideration for the court in the matters with regard to custody of minor of tender age would be the welfare of a minor---Deprivation of mother of the custody of infant was neither lawful nor proper nor was in the interest of minor aged one year to be kept away from the lap of her mother as there could be no substitute of it---Constitutional petition was allowed and custody of minor was handed over to her mother .

Citation Name : 2015 PCrLJ 1597 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NAVEEDA ABBAS
Side Opponent : ADDITIONAL SESSIONS JUDGE, GUJRANWALA
S. 491 ---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Maintainability---Habeas corpus petition---Custody of minor---Petitioner (mother ) filed habeas corpus petition for recovery of her minor daughter which was dismissed---Validity---High Court could only issue a writ of habeas corpus in exercise of powers conferred under Art. 199(1)(b)(i) of the Constitution---Right of intra-court appeal against an order passed under Art.199(1)(b)(i) of the Constitution was not available therefore, intra-court appeal was not maintainable---Petitioner had not given the specific date as to when respondent (father) had taken away the minor which was an important factor for exercising the jurisdiction under S.491 , Cr.P.C. and Art.199 of the Constitution---No evidence was on record that minor was forcibly snatched by the respondent---Minor was examined by the Sessions Judge while adjudicating the petition under S.491 , Cr.P.C. and she was comfortable and showed close attachment with the respondent---No exceptional and extraordinary circumstances existed for exercising jurisdiction under Art.199 of the Constitution and S.491 , Cr.P.C.---No illegality had been pointed out in the impugned judgment which did not call for interference in intra-court appeal which was dismissed being not maintainable.

Citation Name : 2015 PCrLJ 880 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. SHAKILA BIBI
Side Opponent : SHO POLICE STATION CHOBARA, DISTRICT LAYYAH
S. 491 ---Habeas corpus petition---Custody of minors---Petitioner who was mother of minors, had filed petition for their recovery from their father---One of the minors, daughter aged 9 years, appeared to be quite intelligent, was not attracted and drawn to petitioner/mother and denied all the allegations made by the petitioner---Daughter even expressed her hatred and aversion towards the mother ---Other minors, also appeared well fed and well-clad; they also did not take glance at the mother /petitioner, and appeared to be attached to the father/ respondent---All such things created suspicion in the eyes of the court---Emotions apart, it stood established that there was no truth in the assertions made by the petitioner/mother that minors were removed forcibly by father---Petitioner had admitted that she was married to another person---Wish of the petitioner could not be granted for the reasons; that petitioner herself abandoned her minor children almost a year ago, and never attempted to establish contact with them, which reflected adversely on her conduct; that minors appeared to be fond of their father and their paternal grandmother ; that minors hardly recognized the petitioner as their mother ; that if they were wrenched apart; both their education and health would be seriously affected; that, if the custody of minor aged 3 years was handed over to the petitioner, he would be brought up separately from his siblings, thereby depriving him of the company of his elder sister and other minor brother; that, it was never considered desirable that one child was separated from his/her siblings to be reared alone; and that there were serious questions as to how the petitioner would maintain minor son as she had no source of any income; and if she had to sue respondent for maintenance of minor son, it was better that he be allowed to be brought up by respondent/father as before.

Citation Name : 2015 MLD 833 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAIMA NOREEN
Side Opponent : State
S.491 ---Habeas corpus petition---Recovery of minor daughter aged about one year---Petitioner, mother of minor daughter, aged about one year, sought recovery of minor, from father of the minor---Pendency of proceedings for custody of minor before Guardian Judge, keeping in view the age and welfare of the minor, would not create any jurisdictional bar for High Court, which court could interfere in such like cases---Agreement between the parties regarding the custody of the minor girl, in which she was handed over to father was against the welfare of the minor and would come under coercion; and undue influence of the elders of the family and was not to be allowed to override the consideration of the welfare of the minor because it was an undeniable right of the minor girl of such an age to be blessed with the lap of the mother ---Minor, in circumstances, was handed over to the petitioner, mother ---mother was directed to facilitate father of minor for his periodic meeting with his daughter---Parties would be at liberty to pursue the matter of custody of the minor before the Guardian Judge who would decide the same expeditiously in accordance with law.

Citation Name : 2015 MLD 659 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. KANIZ FATIMA
Side Opponent : SESSIONS JUDGE, MUZAFFARGARH
S.361---Criminal Procedure Code (V of 1898), S.491 ---Constitution of Pakistan, Art.199---Constitutional petition---Habeas corpus proceedings---Kidnapping from lawful guardianship---Custody of mother ---Quashing of habeas corpus proceedings---Sessions Judge, on application filed by father initiated proceedings under section 491 , Cr.P.C. against mother for custody of her own son who was 4 years old---Validity---mother of child was always a natural guardian along with father---mother could never be ascribed or attributed offence of kidnapping her own child---Exceptions posted with S. 361 P.P.C. had even gone to the extent of reliving a person from criminal liability even if he/she believed himself/herself to be mother /father of an illegitimate child or who in good faith had believed to be entitled to lawful custody of such child---Child of 4 years needed love, affection and care from mother ---Offence of kidnapping from lawful guardian by mother was not made out and Sessions Judge did not examine relevant material on record---High Court set aside the order passed by Sessions Judge, and quashed proceedings under S. 491 , Cr.P.C., as continuation of same would amount to abuse of process of law---Petition was allowed in circumstances.


Citation Name : 2015 YLR 2465 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. MUSARAT BIBI
Side Opponent : RAZZAK MASIH
S. 491 ----Guardians and Wards Act (VIII of 1890), S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Power to issue direction of the nature of Habeas Corpus---Right to custody of minor---Determination--­Forum---Respondent/husband filed petition under S. 491 , Cr.P.C. against petitioner/wife seeking custody of minor on ground that wife having remarried had lost her right of Hizanat---Court, accepting said petition, handed over custody of minor to the husband---Contentions. raised by wife were that question of Hizanat could not be decided in petition filed under S. 491 , Cr.P.C. and that custody of minor could not be termed as illegal or wrongful as she was his real mother , and that proper forum for said question was Guardian Court---Validity--- After separation of marriage, minor remained in legal custody of wife till the minor was removed from her custody under impugned order passed under S.491 , Cr.P.C.---Provisions of S. 491 , Cr.P.C. empower court to direct that a person within its appellate criminal jurisdiction be brought before it to be dealt with according to law and to direct that a person illegally or improperly detained in public or private custody within such limits be set at liberty---Present case did not fall in either of two categories which pertained to criminal jurisdiction of the court, whereas question of custody was to be ' dealt by Guardian Court---Custody of, and meeting with, the minor fell within the exclusive jurisdiction of Guardian Court-- High Court set aside the impugned order and handed the custody of the minor back to the wife--Constitutional petition was allowed in circumstances.

Citation Name : 2015 PCrLJ 875 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. WAFA AND ALEEB
Side Opponent : IMRAN BHATTI
S. 491 ---Scope of S. 491 , Cr.P.C.---Habeas corpus petition---Conditional order---Application for custody of minor under S. 491 , Cr.P.C.---Minor girl, who was aged about 4 years was living with her father---Trial Court handed over custody of minor to the (mother )/ applicant, and passed conditional order directing the applicant to furnish P.R. bond in the sum of Rs.100,000; not to leave the place 'K' along with minor without prior permission of the court and to arrange meeting of father with minor without creating any obstruction---Validity---Section 491 , Cr.P.C., had a limited scope to provide immediate relief; and the court while dealing with the matter, where person, illegally or improperly detained in public or private custody within its limits, be set at liberty, or if a prisoner detained in any jail situated within such limits to bring before the court---Court while invoking its jurisdiction under S.491 , Cr.P.C., must act strictly within the ambit of said section; and any direction beyond its provisions, would be illegal, and without jurisdiction--- No condition could be imposed in habeas corpus petition---No authority was conferred upon the court to pass any conditional or restricting order under S.491 , Cr.P.C.---Proceedings under S. 491 , Cr.P.C., were summary in nature to provide efficacious relief to aggrieved party---Order for the recovery of minor from custody of father to the extent of handing over to mother (applicant) was just and proper---Order passed under S.491 , Cr.P.C. was interim order in nature, and was subject to the final adjudication by concerned court exercising its jurisdiction under provisions of Guardians and Wards Act, 1890---Applicant being real mother , was entrusted with the custody of minor, but court was not competent to impose restrictions and conditions on the applicant--- Impugned order was modified only to the extent of imposing of conditions on applicant, in circumstances.

Citation Name : 2015 PCrLJ 1373 HIGH-COURT-AZAD-KASHMIR
Side Appellant : SALIK ZAHUR KHAN
Side Opponent : NAZIA SALIK
S. 491 ---Habeas corpus petition---Minors, recovery of---Order had been passed by Court of United Kingdom for custody of minor---Scope---Contention of father-petitioner was that High Court of Justice Family Division, United Kingdom had issued order for handing over the minor-girls to the petitioner---Validity---Minors were British nationals having British passports---United Kingdom Court could competently decide the dispute between the parties with regard to custody of minors---Order passed by the United Kingdom Court was binding on respondents---Welfare of minors could only be decided by the court where the minors were residing---High Court (AJ&K) could not interfere in the jurisdiction of Court of United Kingdom seized with the matter with regard to determination of issue of welfare of minors---Contesting respondents might raise such plea before the Court of United Kingdom---View and opinion of the minors was important---High Court (AJ&K) examined and interviewed the minors who wanted to join their father subject to the condition that their mother along with grandparents also accompanied them otherwise they wanted to live with their mother ---Minors were living with their mother and grandparents therefore in view of the influence of respondents much importance could not be given to their opinion---Respondents were directed to allow the father to meet the minor-daughters in their present residence for a fortnight---Respondents should handover the custody of minor-girls along with traveling documents to father and in case their failure Judge Family Court would summon the minors after a fortnight on the very next day from the respondents and hand over them to the father-petitioner---British High Commission would be responsible to send the minors along with petitioner and their mother if she was also willing to go to the United Kingdom---Habeas corpus petition was accepted, in circumstances.

Citation Name : 2014 MLD 1718 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MAHAK BIBI
Side Opponent : ADDITIONAL SESSION JUDGE
Ss. 491 & 561---Constitution of Pakistan, Art.199---Constitutional petition---Powers under S.491 , Cr.P.C.---Scope---Additional Sessions Judge restrained petitioner/mother from removing minors from territorial jurisdiction of Tehsil---Validity---Scope of S.491 , Cr.P.C. was not wide---Object of S.491 , Cr.P.C. was to secure freedom and not to curtail liberty---If the persons (in illegal custody) was a minor, the court might make over his custody to the guardian who would deal with the minor in accordance with law but court could not place embargo (on the movement of minor or guardian) as such embargo would tantamount to curtail liberty which was not permissible under S.491 , Cr.P.C.---By restraining movement of petitioner/mother and minors, Additional Sessions Judge interfered with the sphere of Guardian Court which was empowered to decide matter of final custody---Impugned order was set aside---Constitutional petition was accepted.

Citation Name : 2014 MLD 38 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. SAIMA BIBI
Side Opponent : RAHEEL BUTT
S.491 ---Constitution of Pakistan, Art. 199---Constitutional petition---Minor-detenue, recovery of---Contention of the petitioner-wife was that she was turned out by the respondent-husband from the house after snatching the minor-detenue---Petitioner filed a application under S.491 Cr.P.C. which was dismissed by the Additional Sessions Judge on the ground that matter was pending before the Guardian Court---Validity---Ad-interim injunction granted by the Guardian Judge was to the effect that the minor-detenue should not be snatched per force, so the said order or pendency of the petition under the Guardians and Wards Act, 1890 was no bar on decision of the application under S.491 Cr.P.C. on merit---Provisions of S. 491 Cr.P.C. provided efficacious and speedy relief for release of the person kept under illegal or improper custody---Minor-detenue girl aged about 5 years needed constant love, care and affection of the mother ---Respondent-husband was a businessman and he looked after his business during day time so he could not look after the minor-detenue properly---Though the father's mother lived in the same house but she was not a substitute of the real mother ---Minor girl could be brought up properly by the mother only and her custody with anyone except the real mother was improper---Matters of custody of minor should be dealt with parental jurisdiction---Minor-detenue was not in proper custody---Constitutional petition was accepted and minor-detenue was given in the custody of the petitioner-mother .

Citation Name : 2014 PLD 598 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. REEMA
Side Opponent : S.H.O. POLICE STATION DARRI, LARKANA
S. 491 ---Habeas corpus petition for recovery of minor---Minor son aged about 2½ months in custody of father---Propriety---Such custody was improper keeping in view welfare of the child and rights conferred upon him---High Court directed that father should hand over custody of minor son to his mother /petitioner; that mother should not remove the minor from territorial limits of the High Court, and that ultimate determination of entitlement of custody laid with the Guardian Judge.

Citation Name : 2014 YLR 705 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. ABIDA
Side Opponent : S.H.O., RATODERO POLICE STATION (DISTRICT LARKANA)
S.491 ---Habeas corpus petition---High Court, jurisdiction of---Scope---Recovery of minor children---mother of minor children sought their custody, as they had been removed by their father---Plea raised by father of minors was that matter related to jurisdiction of Guardian Court---Validity---Minor son was only thirty days old, whereas two minor daughters were two and three years of age---Minors were in tender age and needed constant care of mother and there could not be any substitute for a mother and that lap of mother was God's own cradle for a child---Custody of minors with their father was improper, if not illegal---High Court, as an interim measure could grant custody of minors to his/her lawful guardian even in case pending in Guardian Court---High Court directed father of minors to hand over custody of minors to their mother ---Application was allowed in circumstances.

Citation Name : 2014 YLR 152 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. SHAZIA BANO
Side Opponent : GOVERNMENT OF SINDH through Secretary, Home Department, Karachi
Art. 199---Criminal Procedure Code (V of 1898), S. 491 ---Constitutional petition---Habeas corpus---Minor, recovery of---Minor was given in father's custody on the basis of document executed between the parties---Contention of mother of minor was that welfare of the minor was in her custody---Validity---Courts were not supposed to go into the technicalities in the cases pertaining to the custody of child but should decide the case taking into consideration welfare of the child---Petition was not found to be competent when there was no element of illegal custody but in the welfare of the child the courts could pass appropriate orders---mother was entitled to retain the custody of the minor---Constitutional petition was allowed and custody of the minor was handed over to the mother ---Parties would be at liberty to approach the Guardian Judge for the redressal of their grievance if any.

Citation Name : 2014 PCrLJ 1249 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD KHURSHEED
Side Opponent : IHTISHAM
Art. 199---Criminal Procedure Code (V of 1898), S. 491 ---Guardians and Wards Act (VIII of 1890), S. 7---Constitutional petition filed before the High Court seeking custody of minors---Maintainability---Case for custody of minors already pending before the Guardian Judge--- Effect--- Custody of minors with maternal grandmother after death of mother ---Scope---mother of children passed away, whereafter their custody was taken over by their maternal grandmother ---Father of children sought their custody from the maternal grandmother , contending that they were in illegal custody---Validity---Issue of custody of minors was the subject-matter of a case which was pending in the Guardian Court--- Invoking Art. 199 of the Constitution read with S. 491 , Cr.P.C. was thus untenable at present stage---Custody of minors with their maternal grandmother was not to be disturbed---Father had not brought on record any material to show as to who could look after the minors with the same zeal and affection as that of a maternal grandmother ---Custody of minors with their maternal grandmother was not apparently illegal in such circumstances---Father had an equally efficacious remedy available under the Guardians and Wards Act, 1890---Constitutional petition being not maintainable was dismissed accordingly.

Citation Name : 2014 PCrLJ 907 KARACHI-HIGH-COURT-SINDH
Side Appellant : FAROOQ
Side Opponent : Mst. ZAHABA BIBI
Art. 199---Criminal Procedure Code (V of 1898), S. 491 ---Constitutional petition--- Maintainability--- Alternate remedy not exhausted---Effect---Illegal custody of minor---Habeas corpus petition filed by mother against illegal custody of minor with the father---Father challenging legality of habeas corpus petition and order passed thereon by way of a constitutional petition under Art. 199 of the Constitution---Father instead of contesting the matter before the Sessions Court had approached the High Court under Art. 199 of the Constitution making several pleas, which were untenable as the District Court was already seized of the matter under habeas corpus jurisdiction---Plea of petitioner that he being the father had not kept the custody of minor illegally was a matter of habeas corpus wherein the matter with regard to illegality and improper custody would be determined by the concerned District Court---Father had invoked constitutional jurisdiction of the High Court under Art. 199(b)(1) of the Constitution, challenging the legality of proceedings before the Sessions Judge under habeas corpus jurisdiction without exhausting the adequate remedy available under Art. 199(1) of the Constitution---Powers under Art. 199 of the Constitution were subject to the satisfaction that no other adequate remedy was provided by law, whereas in the present case, District Court was (already) seized of the matter under habeas corpus jurisdiction (S. 491 , Cr.P.C.)---Constitutional petition was dismissed accordingly.
Citation Name : 2014 MLD 1333 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. RABIA NOOR
Side Opponent : SHAHZAD SHAH
Art. 199---Constitutional petition---Maintainability---Recovery of children---Scope---Petitioner was wife of respondent and she had been divorced---Petitioner/mother had already approached Sessions Court under S. 491 , Cr. P. C for the same relief---Age of children was nine and seven years and petitioner could not claim her right of Hizanat/ custody of children, who were in the custody of their father being their natural guardian---Custody of children with their father could not be treated as illegal as he was responsible for their upbringing as a natural guardian---Petitioner/mother should file petition under Guardians and Wards Act, 1890 to claim the custody or visiting rights of children---Complaint to Station House Officer against husband for having custody of children did not mean that extraordinary circumstances had arisen for invoking the constitutional jurisdiction of High Court---No case was made out for invoking jurisdiction of High Court for recovery/production of children in the court---Petitioner had equally, efficacious and alternate remedy under Guardians and Wards At, 1890 and she might file guardian petition if so advised as Guardian Judge had power of recovery of minors and regulating their interim custody---Constitutional petition was not maintainable which was dismissed in circumstances.

Citation Name : 2013 PCrLJ 1055 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. RUKHSANA BIBI
Side Opponent : S.H.O. POLICE STATION CANTT. MULTAN
S. 491 ---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas Corpus petition for recovery of minor/detenue---Forum, determination of---Minor/detenue detained in a district attached with the Principal Seat of the High Court---mother filed petition for recovery of minor before that Bench of the High Court, from where minor was allegedly snatched by the father---Minor was removed by her father to a different district, where she was allegedly illegally detained---mother contended that High Court had jurisdiction for whole of the Province, therefore, petition for recovery of minor could be filed before Bench of the High Court, from where the minor was allegedly snatched---Validity---All the areas of the Province fell within the appellate criminal jurisdiction of the High Court but different areas were attached with the Principal Seat and Benches of the High Court keeping in view the convenience of the litigant public---Petition under S.491 , Cr.P.C. could be filed in the appellate criminal jurisdiction of the Bench where the detenue was illegally or improperly detained---Minor, in the present case, was allegedly illegally detained in a district, which was attached with the Principal Seat of the High Court, therefore, it was expedient for the ends of justice that present petition be filed at the Principal Seat---Place of removal of minor was immaterial for the purpose of jurisdiction to hear a petition under S.491 , Cr.P.C. or under Art.199 of the Constitution---Present constitutional petition was disposed of with the observation that mother might file an application for recovery of minor before the Sessions Judge or at the Principal Seat of the High Court, where minor was allegedly detained.

Citation Name : 2013 PCrLJ 200 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. SAMREEN FATIMA
Side Opponent : STATION HOUSE OFFICER, POLICE STATION CHOUNTRA
S. 491 ---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition for recovery of minor---Compromise between mother and father of the minor---mother agreeing to hand over the minor to the father---mother contracting second marriage---Right of Hizanat---Scope---Court below dismissed mother 's (petitioner) petition for recovery of minor on grounds that parties had already arrived at a settlement (compromise) by which the father (respondent) was given custody of the minor through his application under S.25 of the Guardians and Wards Act, 1890, and because the mother had contracted a second marriage and the father had not---Validity---Application of the father under S.25 of the Guardians and Wards Act, 1890 was accepted after the parties compromised by submitting their affidavits in court and he was given custody of the child---mother had given the minor to the father herself in the light of the compromise and she had also contracted a second marriage, therefore, her conduct disentitled her from filing present revision petition before High Court---mother could assail the order of the court below by filing regular appeal as provided under the law instead of adopting a novel procedure by making a petition under S.491 , Cr.P.C. for the recovery of her minor son---Revision petition was dismissed, in circumstances.

Citation Name : 2013 MLD 823 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. JAMEELA BIBI
Side Opponent : STATION HOUSE OFFICER
S. 491 ---Habeas corpus petition for recovery of minor from father---Jurisdiction of High Court under S. 491 , Cr.P.C.---Scope---Jurisdiction of High Court under S. 491 , Cr.P.C. for recovery of minor was to be exercised sparingly and might be undertaken only in exceptional and extra-ordinary cases---No exceptional and extraordinary circumstances warranting institution of present petition were found---mother (petitioner) neither gave date of her divorce nor mentioned the exact and correct date of removal of minor from her lawful custody---Present petition apparently had been filed just to extort money from the father of the minor in the form of allowance of minor---Petition for recovery of minor was dismissed in circumstances.

Citation Name : 2013 YLR 954 KARACHI-HIGH-COURT-SINDH
Side Appellant : ALI HAYAT
Side Opponent : KHOLOD SHAFI
Ss. 491 & 561-A---Habeas corpus application---Recovery of minor children---Parenting agreement between father and mother of children regarding their custody and visitation rights---Father/applicant and mother of minor children had divorced each other, where-after they entered into a parenting agreement---Contention of father was that children's mother had moved them to a new house and denied him his visitation rights, in violation of the agreement---Contentions of mother were that present application under S.491 , Cr.P.C. was incompetent as children were allowed to remain in her custody in pursuance of the Parenting Agreement, and that according to the said agreement all disputes had to be first referred to a mediator---Validity---Execution of Parenting Agreement between father and mother of minors had not been denied---Admittedly custody of children was with their mother ---High Court directed that both parties should follow the Parenting Agreement and might sit together to renegotiate the Parenting Agreement keeping in view the best interest and welfare of their children; that as an interim measure the mother would allow the father to meet the children three times in a week for two hours each, and such interim measure would be valid for up to 30 days; that both parties would not remove the custody of minors from the city without any order of competent court; that father would continue to deposit monthly expenses, and that in case of failure to reach an amicable settlement outside Court within 30 days, parties would be at liberty to approach the Guardian Judge for redressal of their grievance---Application was disposed of accordingly.

Citation Name : 2013 YLR 583 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. SEEMA
Side Opponent : AFTAB AHMED
S. 491 ---Guardians and Wards Act (VII of 1890), Ss. 7, 12 & 25---Habeas corpus petition for recovery of minors---Dismissal---Petition filed belatedly---mother (petitioner) alleged that her sons (alleged detenus) were in the illegal custody of their father (respondent), who entered her house and forcibly took away the children---Validity---Children were with their father, for the last four to five months and present petition had been filed after lapse of such period without any explanation---After children were removed from her custody unlawfully, mother should have filed a report with the police or made a complaint to concerned authorities in accordance with law---Prima facie, it appeared from the conduct of mother that the children were not removed forcibly from her, therefore, it could not be said that custody of children with their father was illegal or unlawful, within the meaning of S. 491 , Cr.P.C.---No proceedings under Guardians and Wards Act, 1890 were pending before Court---No question arose of giving away regular custody of children to either party declaring any of them as guardian under S.7 read with Ss. 12 & 25 of Guardians and Wards Act, 1890 because regular custody was to be decided in the proceedings under the said Act---Petition was dismissed in circumstances, however as an interim arrangement, father of children was directed to leave the children with their mother every week from Friday evening till Sunday evening, after which the mother would return the children without fail, and both parties were further directed not to remove the children out of the city without permission of the court.

Citation Name : 2013 PCrLJ 1503 KARACHI-HIGH-COURT-SINDH
Side Appellant : HUSSAN BEGUM
Side Opponent : IST ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI WEST
Ss. 491 & 561-A---Habeas corpus petition---Recovery of minor-boy from alleged illegal custody of his father (respondent)---Minor-boy below seven years of age---mother (applicant) filed application under S.491 , Cr.P.C., for recovery of her minor son and daughter from the illegal custody of their father---Court below handed over custody of daughter to the mother but ordered that son would remain with the father as he was not in illegal custody---Legality---Custody of minor son who was aged about four years was with his father---Minor son was below the age of seven years and his mother had demanded his custody from the father, hence his custody with the father could not be considered legal and proper---Application was allowed and father was directed to handover the custody of minor son to his mother .

Citation Name : 2013 MLD 1625 KARACHI-HIGH-COURT-SINDH
Side Appellant : Syed AHMED ALI
Side Opponent : STATION HOUSE OFFICER
S. 491 ---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition for recovery of minor---Illegal detention of minor---Scope---Parent having free access to meet the minor regularly---Effect---Father of minor filed application under S. 491 , Cr.P.C., claiming that a foreign court had passed an order in his favour, therefore minor had been illegally removed from his custody by the mother ---Trial Court dismissed said application of father on the basis that order of foreign court was temporary and not conclusive and was passed in absence of the mother ---Father also filed an application under S. 25 of Guardians and Wards Act, 1890 before Family Court for custody of minor, but same was dismissed, and appeal thereagainst was also dismissed by the Appellate Court---Father had exhausted his remedy under Guardians and Wards Act, 1890 and order of Family Court had attained finality---Father was holding meetings with the minor in pursuance of order of Family Court on every alternate Saturday, which manifested that minor was not in illegal detention of her mother , nor her life was in danger---Minor was being produced before the Family Court and father had free access to meet her---Transferring custody of minor, in such circumstances, in exercise of power under S. 491 , Cr.P.C was not warranted---Revision application was dismissed accordingly.

Citation Name : 2013 MLD 741 KARACHI-HIGH-COURT-SINDH
Side Appellant : Syed MUHAMMAD MAHMOOD ALAM
Side Opponent : MUHAMMAD AFSAR KHAN
Ss. 491 & 561-A---Habeas corpus---Application for recovery of minor-boy from the custody of his father, dismissal of---Right of custody of maternal grandfather (nana) and grandmother (nani) of minor---Scope---mother of minor had passed away and he stayed in the custody of his maternal grandfather (nana)---Father of minor filed habeas corpus petition, which was allowed and custody of minor was handed over to him---Maternal grandfather of minor contended that minor had been living with his maternal grandmother (nani) who had a preferential right of custody, and that minor's father had no arrangements to look after him---Validity---Father of minor was his natural guardian and he would be in a better position to maintain and look after the child and provide him proper education and livelihood--- Although maternal grandmother had the preferential right for the custody of the minor but, in the present case, she had not come forward and instead maternal grandfather of minor was claiming the right of custody, who could not be given preference over the natural guardian viz. father---Merely mentioning that after the demise of minors' mother , he was being looked after his maternal grandmother was not enough unless she came forward and claimed such right---Application filed by maternal grandfather of minor was dismissed accordingly.

Citation Name : 2013 MLD 562 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. SADAF
Side Opponent : SHAH NAWAZ
S. 491 ---Guardians and Wards Act (VIII of 1890), Ss. 12 & 25---Habeas corpus petition for recovery of child---Child aged about 13 years living with his father (respondent)---mother (applicant) seeking recovery of child from the father without first seeking his custody from the Guardian Court and without pleading any cruelty or maltreatment by the father---Effect---Contentions on behalf of mother were that she could not appear before the Guardian Court to seek custody of her child as the father was issuing threats of dire consequences---Validity---Facts about threats of dire consequences by father had not been mentioned in the petition---Best efficacious remedy available with the mother was an application for interim and permanent custody of the child under the Guardians and Wards Act, 1890, which remedy had not been exhausted by the mother ---Question as to whether mother could provide better welfare to the child could be best determined by the Guardian Court, as the scope of petition under S. 491 , Cr.P.C was limited---Limits prescribed by S. 491 , Cr.P.C were only to "improper and illegal" custody---Neither any kind of maltreatment nor cruelty by father had been pleaded by the mother , therefore, custody of child with the father could neither be termed illegal nor improper---Petition was dismissed in circumstances.

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Citation Name : 2013 MLD 194 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. SADORI
Side Opponent : SENIOR SUPERINTENDENT OF POLICE
S. 491 ---Habeas corpus---Recovery of detenu---Detenue, a female, had been illegally confined by the accused (respondent), who happened to be her sister's husband and he was also alleged to have committed zina-bil-jabr with her---Detenue gave statement before the court wherein she stated that accused had threatened to kill her father and brothers if she did not join him; that accused had compelled her to file a criminal application against her family members; that accused committed zina-bil-jabr with her and she did not want to go with him and instead wanted to go with her parents, and that her custody should be provided to her parents and brother---Sister of detenue confirmed in her statement before the court that her husband/accused committed zina-bil-jabr with the detenue; that detenue had been detained by the accused, and that accused threatened to kill her---mother of detenue (applicant) also confirmed in her statement before court that detenue was detained by accused by force; that accused committed zina-bil-jabar with the detenue and issued threats of dire consequences---Said statements of detenue, sister of detenue and their mother showed that detenue had voluntarily decided to go with her parents---Detenue, sister of detenue (including her children) were allowed to go to their parents' house and police was directed to provide full and proper protection to all of them and register F.I.R. against accused and also conduct a raid on the house of accused to recover minor baby of detenue---Application was disposed of accordingly.

Citation Name : 2013 PLD 34 ISLAMABAD
Side Appellant : Dr. VIKTOR HACKER
Side Opponent : Dr. SHAHIDA MANSOOR
S. 491 ---Civil Procedure Code (V of 1908), S. 13(b)---Habeas corpus petition---Recovery of minor children---When the foreign judgment not conclusive---Scope---Court of foreign country "A" granted sole custody of minor children to the father (petitioner)---mother of minor children brought them to Pakistan---Father filed habeas corpus petition contending that mother had unlawfully and in patent violation of orders of court of foreign country "A" removed the minors, and that minors were foreign nationals and could not be brought to Pakistan without his lawful permission and consent---mother contended that judgment passed by court of foreign country "A" was passed in her absence and same was not passed on merits, and that even otherwise such judgment was not conclusive as appeal filed against the same was still pending in the apex court of foreign country "A"---Validity---Judgment passed by court of foreign country "A" was not a conclusive judgment because firstly it was not delivered on merits, and secondly appeal against said judgment was still pending in the apex court of foreign country "A"---Minors were in custody of their real mother , therefore, it could not be held that they were in illegal confinement---High Court while dealing with the petition could not assume jurisdiction of executing court of judgment passed by court of foreign country "A"---Petition was dismissed with the observation that father might approach the Guardian Judge for custody of minors.

Citation Name : 2012 PLD 758 SUPREME-COURT
Side Appellant : Mst. NADIA PERVEEN
Side Opponent : Mst. ALMAS NOREEN
S. 491 ---Constitution of Pakistan, Art.185(3)---Habeas corpus petition before the High Court for recovery of minors---Said petition was dismissed by the High Court on the ground that the mother (petitioner) had left her children on her own and they were not removed from her custody, therefore, it could not be said that the children were being illegally detained by the respondent---Validity---Children in the present case, were neither of very tender ages nor had they been snatched away from their mother and, thus, the petition filed before the High Court under S.4