Improper Custody of Minor Baby of Tender Age

 PLJ 2020 Cr.C. (Note) 56

[Lahore High Court, Lahore]

Present: Syed Muhammad Kazim Raza Shamsi, J.

HUMA GULL--Petitioner

versus

I.G. POLICE etc.--Respondents

Crl. Misc. No. 24204-H of 2017, decided on 25.8.2017.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 491--Improper custody of Minor--Baby of tender age--Right of hazanat--Challenge to--Baby was in improper custody of he paternal grandmother for reason that right of Hazanat still exists in favour of petitioner as baby is of tender age of two years and needs care and affection of her mother--It is not stage to determine welfare of minor rather at that stage, temporary custody of minor is to be determined whether petitioner was having her right of Hazanat for having custody of minor--A question of permanent custody falls within domain of Guardian Judge where Court while determining permanent custody of minor would safeguard welfare of minor--Guardian Court may also regulate visitation right of parties in respect of minor--Petitioner was entitled for having custody of her minor daughter Respondents are directed to hand over custody of minor to her mother--Petition accepted.

                                                                                  [Para 3, 4] A & B

Ms. Asma Jehangir, Advocate for Petitioner.

Mr. Muhammad Ishaque, DPG for State.

Sh. Tanveer Ahmad, Advocate for Respondents.

Date of hearing: 25.8.2017.

Order

Through the petition in hand filed in terms of Section 491, Cr.P.C. the petitioner has prayed for handing over her minor daughter Huram Shahzadi from the illegal and improper custody of Respondents No. 3 and 4. She has claimed the custody of minor on the basis that the detenu is her real daughter; that the petitioner and husband are living apart and she has been divorced by Respondent No. 3; that the baby is of tender age and needs care and attention of the mother and lastly that she is having right of Hazanat for having the custody of the minor.

2. Consequent upon issuance of notice in the name of Respondents No. 3 and 4 they are represented through counsel and learned counsel for the respondents submitted that the minor baby is not in the illegal and improper custody rather the baby is in the custody of paternal grandmother who was declared guardian of the baby by learned Guardian Court, Multan vide judgment dated 4.7.2017; that the minor baby was left by the petitioner herself when she was of the age of two months; that the baby has not developed any affiliation and attachment with the petitioner; that the petitioner is residing alone at some unknown place with some strangers, therefore, the welfare of the minor does not lie in handing over the custody of the minor to the petitioner.

3. After having heard the learned counsel for the parties and perusing the record it is found that the petitioner by filing criminal miscellaneous petition which is fixed for today has provided her complete address where she is residing and it is further found that she is a working woman having sufficient sources to bring up her child. At present, the minor is in the custody of paternal grandmother whose custody cannot be termed as illegal in view of the declaration of her guardianship granted by the Court of competent jurisdiction but the baby is in improper custody of her paternal grandmother for the reason that right of Hazanat still exists in favour of the petitioner as the baby is of tender age of two years and needs care and affection of her mother. It is not the stage to determine the welfare of the minor rather at this stage, temporary custody of the minor is to be determined in the circumstances whether the petitioner is having her right of Hazanat for having the custody of minor. A question of permanent custody falls within the domain of learned Guardian Judge where the Court while determining the permanent custody of the minor would safeguard the welfare of the minor. The Guardian Court may also regulate the visitation right of the parties in respect of the minor.

4. In view of above facts and circumstances, the petitioner is entitled for having the custody of her minor daughter Huram Shahzadi as such, the petition in hand is accepted and respondents are directed to hand over the custody of minor to her mother, the petitioner.

(M.M.R.)         Petition accepted