ORDER
SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
C.P No.S-5=
96 of
2013
DATE &=
nbsp; &nbs=
p; ORDER
WITH SIGNATURE OF JUDGE
1. FOR ORD=
ER ON
OFFICE OBJECTION.
2. FOR KAT=
CHA
PESHI.
23.10.2013=
.
Mr.
Badal Gahoti, advocate for petitioner along with petitioner.
Mr. Amjad Ali Sahito, advocate for respondent No.2 along with respondent No.2.<= o:p>
Mr.
Allah Bachayo Soomro Additional Advocate General Sindh.
Detenues
are present in Court.
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p; &=
nbsp; ………..
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nbsp; By
order dated 21-10-2013 custody of minor kids nam=
ely
Javed, Waheed, Naveed and Rubina was handed over to the petitioner thereaft=
er
respondent No.2 was directed to produce remaining detenues namely Sikandar =
and
Zulfiquar. Thus, in pursuance of order respondent No.2 has brought both min=
or
kids.
2. =
Succinctly,
but relevant facts as set out in petition are that husband of petitioner la=
te
Muhammad Uris died on 07-07-2012; leaving behind the petitioner along with =
08
children, petitioner was expe=
lled
forcibly from her husband’s house, by the respondent No.2, since then
custody of six children is with respondent No.2.
3. =
Learned
counsel for petitioner, inter alia,=
contends that the alleged detenues are minors and petitioner being mother is
entitled to receive their custody whereas respondent No.2 is stranger and u=
nder
Islamic law, he has no right over the minor detenues; welfare of minors lies
with mother. In support of his contention, he has relied upon cases of
“Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another” (=
PLD
2004 SC 01), “Nisar Muhammad and another v. Sultan Zari” (PLD 1=
997
SC 852) and “Mst. Nadia Parveen v. Mst. Almas Noreen and others”
(PLD 2012 SC 758).
4. =
Conversely,
learned counsel for respondent No.2 while refuting the above contentions ar=
gued
that alleged detenues are not in illegal confinement but after the death of
Muhammad Uris brother of respondent No.2, petitioner herself had left the h=
ouse
of her husband and kids in that house, whereas two minors namely Jalal and
Hasina were taken-away by her; petitioner has not approached immediately, i=
nspite
of that she claims that minors were in wrongful confinement thus, this Court
has no jurisdiction to entertain this petition and jurisdiction lies with
Guardian and Wards Court; petitioner and her husband were already having
strange relations, therefore, husband of the petitioner recorded entry at
police station containing therein that his father-in-law Ali Murad had t=
aken
Rs.200,000/- and golden ornaments having weight of 15 tollas and have issued
threats of dire consequences and thrown him from their house.
In support of his contention, he has relied upon case of “Naziha Ghaz=
ali
v. The State and another” reported in 2001 SCMR 1782.
5. =
Heard
learned counsel for the respective parties and perused the record.
6. =
After
careful consideration of contentions raised by learned counsel and meticulo=
us
examination of the available record, it is suffice to say that respondent N=
o.2
is uncle of alleged detenues thus, under Islamic law,
he is not falling within definition of Guardian. With regard to the delay in
approaching for custody of minors, learned counsel for respondent No.2 has
relied upon case of ‘Naziha Ghazali (supra). With
profound respect, facts of that case are distinguishable to the present cas=
e in
hand, in referred case dispute of custody was between father and mother and=
it
is referred that while deciding issue of custody learned Single Judge at pa=
ge-3
of impugned order observed that =
220;Custody
of a minor with one of its parents cannot be termed illegal except when it =
is
in violation of an order of a Court of law. In the present case, the respondent No.2 is father and natural
guardian of the minor child who has crossed the age relevant for right of
hizanat of the mother and he is studying in a school according to the living
standard of the parties and there is nothing to show that the custody is
improper”, such view was upheld. Here respondent No.2 is uncle who
has no right over the alleged detenues (minors) in presence of mother, being
natural guardian thus, prima facie custody with
respondent No.2 is improper and so also illegal.
7. =
With
regard to plea of respondent No.2 that petitioner is=
not
in a position to care and look after the minors, respondent is at liberty to
approach Guardian & Wards Act, which is the competent forum to adjudica=
te
the said issue.
8. =
In
view of above, instant petition is allowed in above terms and custody of
remaining two kids is also hereby directed to be
handed over to the petitioner. For remaining prayers petitioner is at liber=
ty
to approach appropriate Court having jurisdiction for his redress. However,=
while
exercising jurisdiction of writ habeas corpus, any observation will not
influence to the case of either party, if filed before Guardian and Wards
Court.
JUDGE
A.C
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