JUDGEMENT SHEET

IN THE ISLAMABADHIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

CRIMINAL REVISION NO. 54 of 2021

Abdul Farooq and another

Vs

Mst. Maryam Farooq and others

PETITIONERS BY: Syed Javed Akbar Shah and Hafiz Syed

Afzal Ahmed, Advocates.

RESPONDENTS BY: Raja Nisar ul Haq Abbasi, Advocate for

respondents No. 1 and 2.
Parties in person.

DATE OF HEARING: 15.11.2021.

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BABAR SATTAR, J.- The petitioners have challenged

the order passed by the learned Additional Sessions Judge,

West-Islamabad dated 10.09.2021 pursuant to which petition

under section 491 Cr.P.C filed by respondents No. 1 and 2 was

allowed and custody of minors was handed to said respondents.

2. The petitioners and respondents No. 1 and 2 are

spouses and their marriages are still intact. Petitioner No.1 and

respondent No.1 were married on 15.11.2011 and have three

children. It is the petitioner’s case that respondent No.1 left her

marital home on 14.06.2021 leaving behind three children and

did not return to her matrimonial home. Petitioner No.2 and

respondent No. 2 were also married on 15.11.2011 and have

four children. It is the petitioner’s case that respondent No.2 left

her marital home on 14.08.2021 along with her daughters, Dua

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Fatima and Hayat Zahra, and did not return to her matrimonial

home thereafter.

3. After the learned Additional Sessions Judge allowed the

petition of respondents No. 1 and 2 under section 491 Cr.P.C

and ordered that the custody of minor children of respondents

No. 1 and 2 be handed over to the said respondents (except the

custody of Hayat Zahra who is a suckling baby and was already

in the custody of respondent No.1). The order of the learned

Additional Sessions Judge was not implemented and the minors

are still in the custody of the petitioners.

4. Learned counsel for the petitioners submitted that

respondents No. 1 and 2 are real sisters and are married to the

petitioners, who are brothers and that respondents No. 1 and 2

are also first cousins of the petitioners. That respondents No. 1

and 2 left their matrimonial homes without any cause

abandoning their children, except Hayat Zahra who remains in

the custody of respondent No.2 being a suckling baby. That on

16.08.2021 petitioner No. 2 became aware that respondent

No.2 had taken away with her Rs. 300,000/- along with a gold

necklace set and gold rings of the children and handed over

these valuable articles to her father who is a “notorious gambler

and a drug addict” and consequently petitioner No.2 filed a

criminal complaint of the incident with respondent No.3 and that

in view of such criminal complaint respondents No.1 and 2 filed

their petition under section 491 Cr.P.C as a counter measure.

He contended that the order of the learned Additional Sessions

Judge could not be implemented as the children refused to go

Criminal Revision No. 54/2021 Page | 3

along with their mothers and returned to their father outside

the court on the day when the impugned order was passed. He

submitted that remedy under section 491 Cr.P.C was an

exceptional remedy and was to be used sparingly. That none of

the children were suckling babies, other than Hayat Zahra who

was already in the custody of respondent No.2. That

respondents No. 1 and 2 left their matrimonial homes and the

children were not illegally snatched and consequently custody of

the children with their fathers were not illegal. He contended

that it has been held by the august Supreme Court that in cases

of real urgency and determination of illegality of continuing

custody of children that powers under section 491 Cr.P.C could

be exercised. He relied on Naziha Ghazali Vs. The State

(2001 SCMR 1782), Mst. Nadia Perveen Vs. Mst. Almas

Noreen and others (PLD 2012 SC 758), Mst. Seema Vs.

Aftab Ahmed and others (2013 YLR 583) and Jahan Ara

Vs. Province of Sindh through Secretary Home

Department, Karachi and others (2019 MLD 1722). The

learned counsel for the petitioners contended that the impugned

order was a non-speaking order and it was for welfare of the

children that their custody remains with their fathers.

4. Learned counsel for respondents No. 1 and 2 submitted

that cause of action arose on 13.08.2021 and 14.08.2021 when

matrimonial dispute arose between the parties. But the petition

was filed on 07.09.2021 because given that marriages of

respondents No. 1 and 2 with the petitioners were still

subsisting, and there was an effort to resolve the matter

amicably through counseling of elders in the family. He

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submitted that respondents No. 1 and 2 were driven out of their

matrimonial homes by the petitioners due to the abusive

behavior and it was in view of the domestic abuse suffered by

respondents No. 1 and 2 that they decided that they could no

longer live in their matrimonial homes. That the children are still

young and dependent on their mothers, who took care of them

while living in their matrimonial homes, and it was the mothers

who were entitled to the legal custody even if they were not

living in their matrimonial homes. He submitted that ages of

children ranged from less than three years up to eight years

and it was in the interest of the children that they stay together

with other siblings. He submitted that respondents No. 1 and 2

were lodging at the house of their father, which was a short

distance away from the house of the petitioners and also from

the school in which the children are admitted, and the custody

of the children being handed over to respondents No. 1 and 2

would further the welfare of the children and would not

undermine and disrupt the life of the children in any manner. He

submitted that the unlawful conduct of the petitioners was

obvious from the fact that despite a clear order passed by the

learned Additional Sessions Court, the custody of the children

was not handed over to respondents No. 1 and 2.

5. While allowing petition of respondents No. 1 and 2

under section 491 Cr.P.C, the learned Additional Sessions Judge

recorded the following reasons.

“Petitioners are real mothers of the minors and there is no

substitute of real mother. Two minors namely Ayyan Haider
and Shayan Haider are beyond age of ‘Hazanat’ as per
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entitlement of their mothers whereas other minors are

within the ‘hazanat’ of their mothers. A daughter namely
Hayat Zohra is already in custody of her mother. The minors
except Ayyan Haider and Shayan Haider are of tender ages
and they require company of their mothers. Undoubtedly,
lap of mother is God’s cradle. As far as minors Ayyan Haider
and Shayan Haider are concerned, it is in their welfare to
live jointly with their other siblings.“

6. Section 491 of Cr.P.C states the following:

491. Power to issue directions of the nature of a

habeas corpus: (1) Any High Court may, whenever it
thinks fit, direct—

(a) that a person within the limits of its appellate

criminal jurisdiction be brought up before the Court to be
dealt with according to law;

(b) that a person illegally or improperly detained in

public or private custody within such limits be set at
liberty ;

(c) that a prisoner detained in any Jail situated within

such limits be brought before the Court to be there
examined as a witness in any matter pending or to be
inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought

before a Court martial or any Commissioners for trial or
to be examined touching any matter pending before such
Court martial or Commissioners respectively ;

(e) that a prisoner within such limits be removed from

one custody to another for the purpose of trial; and

(f) that the body of a defendant within such limits be

brought in on the Sheriff's return of Cepi Corpus to a writ
of attachment.

(1A) The High Court may, by general or special order

published in the official Gazette, direct that all or any of
its powers specified in clauses (a) and (b) of subsection
(1) shall, subject to such conditions, if any, as may be
specified in the order, be exercisable also by-
Criminal Revision No. 54/2021 Page | 6

(a) a Sessions Judge; or

(b) an Additional Sessions Judge,

within the territorial limits of Sessions Division.

(2) The High Court may, from time to time, frame rules
to regulate the procedure in cases under this section.

(3) Nothing in this section applies to persons detained

under any law providing for preventive detention.

7. The jurisdiction of a court adjudicating a habeas corpus

petition in relation to a child cannot be confused with an

ordinary habeas corpus petition where the focus of the court is

on the recovery of the person illegally detained in order to

uphold his Article 9 rights to life and liberty. In case of a minor,

his right to liberty under Article 9 of the Constitution entails a

right to be in the custody of the person who ought to have the

custody of the minor in accordance with law, as till such time

that the minor attains the age of majority he/she has a right to

be taken care of whether by parents or relatives or the State.

And consequently the focus of the court in a habeas corpus

petition filed on behalf of a child is not just on illegal detention

but on ensuring that the interim custody of the minor pending

its determination by a Guardian Court is being dealt with in

accordance with law.

8. That a habeas corpus petition filed for the lawful

treatment of a minor is not to be confused with abduction or

illegal detention of an adult and the consideration to be borne in

mind in such matter is the welfare of the minor as recognized

across common law jurisdictions.

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(i) It is stated in the Halsbury’s Laws of England,

Fourth Edition, Vol.24 (para 511) that:

“511. …Where in any proceedings before any court

the custody or upbringing of a minor is in
question, then, in deciding that question, the court
must regard the minor’s welfare as the first and
paramount consideration, and may not take into
consideration whether from any other point of
view the father’s claim in respect of that custody
or upbringing is superior to that of the mother, or
the mother’s claim is superior to that of the
father.”

(ii) Baily states in Habeas Corpus, Vol. I, (PP.581)

that:

“The reputation of the father may be as stainless

as crystal; he may not be afflicted with the
slightest mental, moral or physical
disqualifications from superintending the general
welfare of the infant; the mother may have been
separated from him without the shadow of a
pretence of justification; and yet the interests of
the child may imperatively demand the denial of
the father’s right and its continuance with the
mother.”

(iii) In McGrath, Re, (1893) 1 Ch 143, it was

observed that:

“The dominant matter for the consideration of the

Court is the welfare of the child. But the welfare of
the child is not to be measured by money only nor
merely physical comfort. The word ‘welfare’ must
be taken in its widest sense. The moral or religious
welfare of the child must be considered as well as
its physical well-being. Nor can the tie of affection
be disregarded.”

(iv) American Jurisprudence, Second Edition, Vol.

39 (para 148) notes that:
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“Generally, where the writ of habeas corpus is

prosecuted for the purpose of determining the
right to custody of a child, the controversy does
not involve the question of personal freedom,
because an infant is presumed to be in the
custody of someone until it attains its majority.
The Court, in passing on the writ in a child
custody case, deals with a matter of an equitable
nature, it is not bound by any mere legal right of
parent or guardian, but is to give his or her claim
to the custody of the child due weight as a claim
founded on human nature and generally equitable
and just. Therefore, these cases are decided, not
on the legal right of the petitioner to be relieved
from unlawful imprisonment or detention, as in the
case of an adult, but on the Court’s view of the
best interests of those whose welfare requires that
they be in custody of one person or another; and
hence, a court is not bound to deliver a child into
the custody of any claimant or of any person, but
should, in the exercise of a sound discretion, after
careful consideration of the facts, leave it in such
custody as its welfare at the time appears to
require. In short, the child’s welfare is the
supreme consideration, irrespective of the rights
and wrongs of its contending parents, although
the natural rights of the parent are entitled to
consideration.”

(v) In Howarth V. Northcott (152 Conn. 460), the

Supreme Court of Connecticut held that:

“The employment of the forms of habeas corpus in

a child custody case is not for the purpose of
testing the legality of a confinement or restraint as
contemplated by the ancient common law writ, or
by statue, but the primary purpose is to furnish a
means by which the court, in the exercise of its
judicial discretion, may determine what is best for
the welfare of the child, and the decision is
reached by a consideration of the equities involved
Criminal Revision No. 54/2021 Page | 9

in the welfare of the child, against which the legal

rights of no one, including the parents, are allowed
to militate.”

The law laid down in Pakistan is in sync with the jurisprudence

referred to above as it is now settled that in exercise of

jurisdiction under section 491 of Cr.P.C, the welfare of the child

is the primary and predominant consideration.

9. It is settled by now that jurisdiction of a court under

section 491 Cr.P.C is not to be confused with the jurisdiction

vested in the guardian court under the Guardians and Wards

Act, 1890 and consequently it is not for the court while

exercising jurisdiction under section 491 Cr.P.C to determine

the entitlement of the parent to retain the custody of a minor on

a permanent basis.

10. It was held by the august Supreme Court in

Muhammad Javed Umrao Vs. Miss Uzma Vahid (1988

SCMR 1891) that section 491 Cr.P.C and the provisions of

Guardians and Wards Act, 1890 are neither mutually exclusive

nor overlap or destroy one another. Thus to the extent of

question of permanent custody of a minor, the matter falls

within the domain of the guardian court pursuant to the

provisions of the Guardians and Wards Act, 1890. And the

remedy available under section 491 Cr.P.C is not a remedy

available for declaring or determining the question of custody of

a minor on a permanent basis. However, courts are obliged to

exercise their jurisdiction under section 491 Cr.P.C in a proper

case where the question of treatment of a minor in accordance

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with law comes before the court, pending determination of

custody by the guardian court.

11. It was held by the august Supreme Court in Nisar

Muhammad Vs. Sultan Zari (PLD 1997 SC 852) that

availability of a remedy under the Guardians and Wards Act,

1890 is no bar to exercise of jurisdiction under section 491

Cr.P.C and the availability of such remedy is not in and of itself

a valid ground for refusing to interfere in the custody of minor

by a parent who is otherwise not entitled to such custody. In

para. 9 of the said judgment, the following was held:

“In the judgment of Mst. Rizwana Bokhari's case (supra),

Muhammad Munir Khan. J. (as his Lordship then was) had
rightly laid down the law which we are inclined to approve
that on examination of the various provisions of Muslim
Law, the Criminal Procedure Code, particularly its section
491, Cr.P.C. and sections 361 and 363 of the P.P.C. indicate
that mother is entitled to 'hizanat' of her male child below
the age of 7 years, failing that the mother's relations under
Muslim Personal Law are entitled to the custody of the
minor. Since the two male minors in this case are
admittedly below 7 years in age and the three females have
not yet attained puberty all the three being less than 8
years, the respondent is, therefore, prima facie entitled to
'hizanat' of all the 5 for the limited purpose of section 491,
Cr.P.C. at the moment and the rights of the petitioners to
the custody of the aforesaid minors has not accrued so far.
In these circumstances, the custody of the aforesaid minors
with the petitioners was, therefore, rightly declared illegal or
at least improper by the learned Chief Justice of the
Peshawar High Court. The learned Chief Justice was also
justified to have expressed more than once that ultimate
determination of entitlement of the custody shall of course
lie with the Guardian Judge to whom the parties were
directed to approach, if they so desired.
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12. In Naziha Ghazali Vs. The State (2001 SCMR

1782) a petition under section 491 Cr.P.C was filed by the

mother after almost six months of the accrual of the cause of

action. The august Supreme Court held that there was no

explanation for delay in reporting the removal of the minor from

the custody of the mother. The custody of the minor with the

father was found not to be illegal, especially as no proceedings

for determination of custody of the minor on a permanent basis

were pending before the guardian court either.

13. It was held by the august Supreme Court in Khalida

Parveen Vs. Muhammad Sultan Mehmood (PLD 2004 SC

1) that in exercise of jurisdiction under section 491 Cr.P.C the

court should not to go into technicalities of law and should

decide the matter before it in view mainly of the welfare of the

child and also “ensure that the rights conferred upon the child

are fully protected in a suitable manner”.

14. It was held by the august Supreme Court in Mst.

Nadia Perveen Vs. Mst. Almas Noreen and others (PLD

2012 SC 758) that jurisdiction under section 491 Cr.P.C is only

to be exercised where the children of very tender age and have

been snatched away from lawful custody quite recently and

there is real urgency in the matter. In the said case the children

were neither found to be of tender ages nor snatched away

from the mother and it was held that the case was not made

out for exercise of jurisdiction under section 491 of Cr.P.C.

15. The latest view of the august Supreme Court was

recorded in Mirjam Abberras Lehdeaho Vs. SHO, Police

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Station Chung, Lahore and others (2018 SCMR 427),

wherein it was held that:

“22. The Guardian Court is the final Arbiter for adjudicating

the question of custody of children. However, where a
parent holding custody of a minor lawfully has been
deprived of such custody, such parent cannot be deprived of
a remedy to regain the custody while the matter is sub
judice before a Guardian Court. Therefore, in exceptional
cases (like the instant case), where the High Court finds
that the best interest and welfare of the minor demand that
his/her custody be immediately restored to the person who
was lawfully holding such custody before being deprived of
the same, the Court is not denuded of jurisdiction to pass
appropriate orders under section 491, Cr.P.C. directing that
custody be restored to that person as an interim measure
pending final decision of the Guardian Court. While the
tender age of the minor is always a material consideration
but it is not the only consideration to be kept in mind by the
High Court. Other factors like best interest and welfare of
the minor, the procedural hurdles and lethargy of the
system, delays in finalization of such matters, the handicaps
that the mother suffers owing to her gender and financial
position, and above all the urgency to take appropriate
measures to minimize the trauma, emotional stress and
educational loss of the minor are equally important and also
need to be kept in mind while granting or refusing an order
to restore interim custody by the High Court. The two
provisions of law namely section 491, Cr.P.C. and section 25
of the Guardians and Wards Act deal with two different
situations. As such, the question of ouster of jurisdiction of
the High Court on account of provisions of sections 12 or 25
of the Guardians and Wards Act or pendency of proceedings
under the said provisions does not arise. There is no overlap
between the two provisions as both are meant to cater for
different situations, the first to cater for an emergent
situation, while the latter to give more long term decisions
regarding questions relating to guardianship of minors
keeping in view all factors including their best interest and
welfare.
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16. In a matter involving the right of a minor to be dealt

with in accordance with law under section 491 of Cr.P.C, the

question before the Court is not whether a child has been

abducted by a parent in the ordinary sense. During the

subsistence of marriage both parents have joint custody of their

minor children. In the case of a matrimonial dispute or

altercation between the spouses, it is not necessary that the

children must be physically snatched from one parent to bring

the matter within the scope of section 491 of Cr.P.C. In the

event that a husband subjects his wife to abuse forcing her to

leave the matrimonial home, the court cannot turn a blind eye

to the circumstances in which the shared custody of the children

was transformed into sole custody. In such circumstances, for

purposes of section 491 Cr.P.C, it is not for the court to sit in

judgment over who is at fault in the matrimonial dispute, but

how would the welfare of a child be best preserved, in the

interim, when joint custody of the child shared by both parents

is not an option.

17. For a considerable period the “Tender Years Doctrine”

has guided the exercise of discretion by courts in custody

matters, where courts assumed that healthy development

occurred when young children were raised by their mothers.

However, contemporary psychological and sociologically

research questions the assumption that the mother is

necessarily the best parent for raising a child in all

circumstances (see for example Santrock & Warshak, Father

Custody and social Development in Boys and Girls, 35 J. Soc.

Issues 112 (1979); Watts V. Watts, 77 Misc.2d 178, 181-182,

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350 N.Y.S.2d 285, 289-90, (Fam.Ct.1973)). Research is now

pointing to the need for evolving a more gender-neutral

approach to child welfare given changing social structures and

two-career families etc. One of the questions to ask while

considering the child’s welfare in a custody matter in order to

accord continuity to such welfare is which of the parents is the

primary caregiver. The parent who maintains the strongest

bond with the child as a result of daily attention to the child’s

physical and psychological needs is regarded as the

psychological parent (see J. Goldstein, A. Freud & A. Solnit,

Beyond the best interests of child (1979)). In a nut shell, an

important consideration for the court while addressing the

question of interim custody in the child’s welfare is ensuring the

continuity of care for his/her physical and psychological needs

by the parent who customarily provides such care.

18. In the instant case the respondents No. 1 and 2

appeared before the Court and submitted that they were on the

receiving end of domestic abuse and when such abuse became

insufferable they had no option but to seek refuge in the house

of their parents. In their pleadings and submissions the

petitioners have alleged that the maternal grandfather of the

children (who is also the uncle of the petitioners) is a gambler

and drug addict, without any record produced before the Court

to substantiate such serious allegations against the father of

respondents No. 1 and 2 and the father-in-law of the

petitioners. The children were produced before the Court and

they were interviewed in Chambers and were found by this

Court to have been tutored, with the older children dissuading

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their younger siblings from speaking. The children narrated

what appeared to be a tutored lesson that their mothers were

not nice persons and did not behave well with their fathers. The

attitude of the children was clearly different when they were

interviewed in the Chambers along with their mothers, as they

seemed to interact well with their mothers in the absence of the

petitioners. This Court has found that the brainwashing of minor

children instilling ill-will against their mothers and using them as

a tool in the matrimonial dispute between parents by their

fathers cannot be in the welfare of the children. Notwithstanding

any strain in the relationship between the parents, inciting

resentment for the mother does not promote the welfare of a

child and an environment in which rancor for a parent is being

nurtured is not the best environment for the emotional and

moral welfare of the child.

19. This Court also finds no infirmity in the reasoning of

the learned Additional Sessions Judge recorded in the impugned

order, which held that it was in the welfare of the siblings to

stay together. Given that the younger children are more

dependent on their mothers who have remained the primary

caregivers to the children for their physical and psychological

needs, the learned Additional District Judge rightly came to the

conclusion that the children ought to be stay together in the

custody of the mothers for the time being. Admittedly, a

guardian petition has been filed by the petitioners before the

guardian court and it was for such court to determine wherein

the welfare of the children lies for granting custody in the event
 Criminal Revision No. 54/2021 P a g e | 16

that the petitioners and respondents are unable to resolve their

matrimonial disputes.

20. It is expected that the learned Guardian Court will

decide the question of custody within a period of sixty days, in

accordance with law, without being influenced in any manner by

the observations of this Court in the instant judgment. Further,

in order to ensure that the petitioners have parenting time with

the children pending adjudication of custody on a permanent

basis by the learned Guardian Court, the petitioners may collect

the children from the lodging of respondents No. 1 and 2 every

Saturday at 3.00 pm and drop them back by 3.00 p.m on

Sunday.

21. The revision petition is disposed off in the above

terms.

(BABAR SATTAR)
JUDGE

Approved for reporting

Saeed.