Law:

Section:

Constitution of Pakistan---Art. 199---Criminal Procedure Code (V of 1898), S. 491---Constitutional petition---Habeas corpus---Minor, recovery of---Minor was given in father's custody on the basis of document executed between the parties---Contention of mother of minor was that welfare of the minor was in her custody---Validity---Courts were not supposed to go into the technicalities in the cases pertaining to the custody of child but should decide the case taking into consideration welfare of the child---Petition was not found to be competent when there was no element of illegal custody but in the welfare of the child the courts could pass appropriate orders---Mother was entitled to retain the custody of the minor---Constitutional petition was allowed and custody of the minor was handed over to the mother---Parties would be at liberty to approach the Guardian Judge for the redressal of their grievance if any. Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir 1987 SCMR 174 and Mst. Khalida Parveen v. Muhammad Sultan Mehmood PLD 2004 SC 1 rel. ORDER AFTAB AHMED GORAR, J.---This petition has been filed by the petitioner namely Shazia Bano for recovery of her daughter namely Salwa Zehra aged about 21 months from the custody of her father Gulzar Ali. In this case, parties being husband and wife parted their ways on account of dissolution of marriage tie between them. They had a female child of 21 months old who was allowed to remain in the custody of her father, in pursuance of a document written between the parties. Subsequently, Mst. Shazia Bano, petitioner approached this High Court by invoking its jurisdiction under constitution petition under Article 199 of the Islamic Republic of Pakistan. Learned counsel appearing for the petitioner stated that the minor being 21 months of age has got a right guaranteed her to live with her mother till the time of her attaining puberty according to the Muslim Shariat and she cannot be deprived from her such right merely on the basis of a document which has been executed between the parties as per their convenience. He further stated that there are number of cases wherein such document written between parties at the time of…

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