After death of mother maternal grandmother has preferential right of hizanat

 PLJ 2021 Lahore 605

Present: Sardar Muhammad Sarfraz Dogar, J.

MUHAMMAD AZHAR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE etc.--Respondents

W.P. No. 15258-HB of 2021, decided on 16.3.2021.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, 1898, S. 491--Constitutional petition--Death of detenue, mother--Prefuntional right of hizanat--Immediate snatching--Exercising of paternal jurisdiction--Challenge to--It is settled law that after demise of real mother, maternal grandmother has preferential right of hizanat under Mohammadan Law--It is admitted by counsel for petitioner that after demise of real mother, minor detenue is living with her maternal grandmother, meaning thereby, it is not a case of immediate snatching--It is not possible in these circumstances to detach or decamp said minor detenue from custody of her real maternal grandmother because it would amounts to disturb her normal life--High Court while exercising its parental jurisdiction feels no interference into custody of alleged detenue--He is ordered to be remained in custody of her real maternal grandmother--Petitioner being father of minor has remedy to get interim as well as permanent custody of his minor son by filing guardian petition in accordance with law--Petition disposed of.                                       [P. 606] A, B & C

Mr. Babar Bilal Awan, Advocate with Petitioner.

Mr. Saeed-ul-Hassan Jafri, AAG for Respondents.

Rana Sohail Irshad Solehria, Advocate for Respondent No. 4.

Date of hearing: 16.3.2021.

Order

In compliance of this Court's order dated 15.03.2021, minor detenue namely Muhammad Ahmad (Muhammad Arham) aged about 1.1/2 years has been produced before this Court by her maternal

grandmother. The alleged detenue seems to be very tender age. The real mother of the detenue has died and since then, she is living with her maternal grandmother. It is settled law that after the demise of real mother, maternal grandmother has the preferential right of hizanat under the Mohammadan Law.

2. It has been held by the Hon'ble Supreme Court of Pakistan in case titled Mst. Nadia Parveen vs. Mst. Almas Noreen and others” (PLD 2012 Supreme Court 758) that “Matter of custody of minor children can be brought before a High Court under Section 491, Cr.P.C. only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter. In such a case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge”. Furthermore, the Hon'ble Supreme Court of Pakistan held in case titled “Shaukat Masih vs. Mst. Farhat Parkash and others” (2015 SCMR 731) that “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”. It is admitted by learned counsel for the petitioner that after the demise of real mother, the minor detenue is living with her maternal grandmother, meaning thereby, it is not a case of immediate snatching.

3. At this juncture, prudently it is not possible in these circumstances to detach or decamp the said minor detenue from the custody of her real maternal grandmother because it would amounts to disturb her normal life. Therefore, this Court while exercising its parental jurisdiction feels no interference into the custody of the alleged detenue. He is ordered to be remained in the custody of her real maternal grandmother. However, the petitioner being the father of the minor has the remedy to get the interim as well as permanent custody of his minor son by filing guardian petition in accordance with law. Disposed of.

(Y.A.)  Petition disposed of