Present
Mr. Justice Abdul Maalik Gaddi
Mst. Ambreen Khanam ….……………………………………Petitioner
Versus
Government of Sindh and others……………………….. … … Respondents
Date of hearing : 28.01.2014
Date of order : 28.01.2014
Mr. Qadir Hussain, Advocate for the Petitioner a/w petitioner.
Respondent No.4 Imran Ahmed present in person along with minors namely Roomasa (daughter) and Muhammad Umar Ali (son).
Mr. Saleem Akhter Buriro, Addl. P.G.
Mr. Sharafdin Mangi, Counsel for the State.
SIP Nazar Ali Abro, P.S. Landhi.
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Abdul Maalik Gaddi, J: Learned counsel for the petitioner has contended that the petitioner was married with respondent No.4 on 13.07.2008 and out of said wedlock the petitioner has given birth to two children namely (1) Roomasa, daughter aged about 04 years and (2) Muhammad Umar, son aged about 2-1/2 years. It is also argued that from the very beginning of the marriage the behavior of the respondent No.4 and his family remained unpleasant, immoral and he used to maltreating the petitioner without any reason. He has further submitted that about 08 months back respondent No.4 kicked out the petitioner along with minors and then she took shelter in her parents house. It has also submitted that on 08.11.2013 the respondent No.4 came at Karachi and forcibly snatched said minors from her lap and since then they are in unlawful and illegal confinement of the respondent No4.
2. Respondent No.4 has produced the minors in Court and has submitted that the allegations as mentioned in this petition are false and has no basis, therefore, he has prayed for dismissal of this petition. It may be mentioned here that respondent No.4 despite of given chance to him to file objection, if any, against this petition did not file any objection, therefore, it appears that allegation made in the petition goes to unrebut and unchallenge.
3. Learned State Counsel and learned APG stated that the respondent No.4 has produced the children in Court, who are minor as such the petitioner is entitled for their custody being mother and right of hizanat is also in favour of the petitioner till minors attained majority.
3. Heard parties present in Court.
4. There is no cavil to the proposition that in the matters pertaining to the custody of minor of tender age, the High Court is empowered to issue directions in like matter if the custody of the minor was illegal or improperly disturbed. Learned counsel for the petitioner while relying upon the un-reported orders of this Court passed in C.P.No.S-655/2013, C.P.No.S-726/2013 and C.P.No.S-1237/2013 has prayed for allowing this petition. Article 199 of the Islamic Republic of Pakistan provides more efficacious, speedy and appropriate remedy in a case of illegal or improper custody of minors and High Court even pass an order regarding temporary custody without prejudice to the right of the parties for final determination of the dispute pertaining to custody of minor by the Guardian and Wards Court. The jurisdiction of the High Court can only be invoked in a case of illegal or improper custody and not for any other consideration including the welfare of the minors. The right of hizanat having the force of injunction of Islam is an accepted principle of Islamic Law. Admittedly, the minors are in custody of father, they are aged about 04 years and 2-1/2 years respectively and they are in tender age and it is a universal truth that there cannot be any substitute for a mother and the lap of the mother is God’s own cradle for a child, manifestly the custody of minor with father under the circumstances, is improper if not illegal.
5. In view as observed above, this petition is allowed. It is directed that the minors shall be handed over by the respondent No.4 to the petitioner only today. The respondent No.4, while dictating this order, has handed over the custody of the said minors to the petitioner in Court.
6. Before parting with the order, I would like to make it clear that this order shall not however be a bar in the way of respondent No.4 in establishing his claim for custody of minors before Guardian Judge by filing appropriate proceedings, which if institute shall be disposed of as per law.
7. Since the custody of minors has been received by the petitioner, therefore, under the circumstances of the case, petitioner is directed to produce the minors before the Nazir of this Court on every fortnight on Saturday for the meeting with respondent No.4 from 10.00 a.m. to 11.00 a.m.
J U D G E