ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR


Cr.M.A.No.S-298 of 2015


Date of hearing:- 22.6.2015

Mr.Shabbir Ali Bozdar Adv: for applicant.

Mr.Muneer Ahmed Bijarani, Advocate for resp: 5 & 6.

Mr.Sardar Ali Shah A.P.G.

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ABDUL MAALIK GADDI, J: The applicant through the instant criminal miscellaneous application has approached this Court for seeking custody of her minor daughter namely baby Shabana presently aged about four years.


2. It is stated by the applicant that she contracted marriage with the respondent No.5 (Saifuddin) by executing Nikanama and out of the wedlock one son Sajjad Ali and baby Shabana were born. It is alleged that due to cruel conduct of respondent No.5 the applicant could not move easily to her parents and relatives. As per contents of the application the respondent No.5 used to torture her mentally and physically and ousted her from his house on petty matter without showing any reason. Thus the relation between the parties had become strained. According to her on 24.5.2015 when applicant alongwith his children and other family members including Abdul Rasheed and Karim Bux were present in the house, the respondent No.5 (Saifuddin) alongwith two un-identified persons with deadly weapons forcibly entered in her house and snatched the baby Shabana from her, on which she and other family members made resistance but respondent No.5 with the help of unidentified persons went away alongwith minor baby Shabana by issuing threats for murder and dire consequences.


3. The respondent No.5 has appeared alongwith minor baby Shabana on the notice of this Court and has admitted the marriage and birth of two children by filing counter affidavit which is taken on record and copy whereof supplied to the counsel for the applicant. He has alleged that male child Sajjad Ali aged about 13 years is already with the applicant, as such he being real father of baby Shabana is entitled for retaining the custody of the said baby. In his counter affidavit he has denied the allegations as leveled by the applicant.


4. Learned counsel for the applicant has argued that the applicant being mother of the minor has a preferential right of custody of the minor baby Shabana who is in tender age and the custody with respondent No.5 of the minor is irregular and improper. He further argued that baby Shabana is in tender age need constant, love, care and affection of her mother and no person is substitute of the mother, therefore, under the circumstances he has prayed that the custody of the minor who is present in Court alongwith respondent No.5 may be handed over to the mother.


5. Learned counsel for respondent No.5 has vehemently opposed this application mainly on the ground that father i.e. respondent No.5is a legal guardian of baby Shabana, therefore, has superior right to retain the custody of the said baby Shabana who is closely attached with him and that she is being properly looked after by the father and baby Shabana is getting education in one class in Primary School Ahmed Ali Bakhrani District Kashmore, whereas the applicant has no sources to provide good education and welfare of the said minor.

6. Before proceeding the matter the parties were given opportunity to explore the possibilities for out of Court settlement, however, no amicable settlement could be arrived at.

7. Arguments heard. Record perused.


8. It is an admitted fact on record that male child Sajjad Ali aged about 13 years is in the custody of applicant whereas baby Shabana aged about four years at present in the custody of respondent No.5.


9. The provisions of Section 491 Cr.P.C. provide efficacious and speedy relief for release of persons kept under illegal or improper custody and is to be exercised without prejudice to the right of the parties to have the matters finally adjudicated from the Guardian Judge. In a case of Mst.Tayyaba Khan vs. Syeda Begum and another (PLD 1994 Karachi 204) it has been held that the mother being entitled to the custody of her minor son till the age of seven years, the custody of the minor with the father after having been demanded by the mother could not be considered as legal and in the said case the custody of the minor who was present in Court with his father was directed to be handed over to his mother immediately with further direction that parties can agitate the question of custody before the guardian and ward Court.


10. In view of the above case law the custody of baby Shabana aged about four years with respondent No.5 appears to be irregular and improper. Baby Shabana being of tender age need constant love, care and affection of her mother and no person is substitute of the mother. In a case of Mst.Khalida Perveen vs. Mohammad Sultan Mahmood and another (PLD 2004 SC 1) the Honourable Apex Court has held that in the case pertaining to the custody of the child the Courts are not supposed to go into the technicalities and they should decide the cases keeping in view the facts and circumstances of each case placed before it for decision mainly taking into consideration welfare of the child. It is further held in the said case that although ordinarily a petition under Section 491 Cr.P.C. not found to be competent where there is no element of illegal custody by the father of his own child but in the welfare of a child as well as to ensure that the rights which have been conferred upon the child are fully protection in a suitable manner the court can pass appropriate order in exercise of inherit jurisdiction.


11. As observed above the respondent No.5 has produced baby Shabana who is aged about four years, therefore, under the circumstances the custody of baby Shabana with respondent No.5 is not proper, therefore, this application is accepted and respondent No.5 is directed to hand over the custody of minor baby Shabana to applicant immediately. This order has been passed in open Court and respondent No.5 after announcement of this order handed over the custody of baby Shabana to applicant, therefore, this criminal miscellaneous application stands disposed of. However, the applicant is directed to provide access to meet and see baby Shabana to respondent No.5 on every alternate Saturday in her house from 3:00 p.m. to 5:00 p.m. Respondent No.4 SHO P.S.Faiz Ganj is directed to make sure that during meeting no unpleasant incident could be taken place and applicant and respondent No.5 be provided legal protection to them during the meeting time.



JUDGE












Imran