Law: Criminal Procedure Code (V of 1898)

Section: 491

Law: Constitution of Pakistan, 1973

Section: 199

Law: Guardians and Wards Act, 1890

Section: 25,5,7

(a) Criminal Procedure Code (V of 1898)--- ----S. 491---Constitution of Pakistan, Art. 199---Guardians and Wards Act (VIII of 1890), Ss. 25, 5 & 7---Habeas corpus---Recovery and custody of minors---Defective forum---Scope assailed order of Sessions Judge whereby he had directed the petitioner to produce minors before the court had filed application under Ss. 5 & 7 of Guardians and Wards Act, 1890 against his wife seeking declaration that the welfare of the minors was in their custody with father---Mother of minors had filed application under S. 491, Cr.P.C. and had prayed for their recovery and custody---Validity---Held; that none of the parties had filed application in terms of S. 25 of Guardians and Wards Act, 1890 for determination of their title as "guardian" to claim custody of the wards as against the other---Parties had chosen a defective forum for redressal of their grievance and/or claim against each other---High Court converted the petition under S. 491, Cr.P.C. into an application under S. 25 of Guardians and Wards Act, 1890 and changed the application under Ss. 5 & 7, Guardians and Wards Act, 1890 into written reply of the application--- Constitutional petition was disposed of, accordingly. (b) Guardians and Wards Act (VIII of 1890)--- ----Ss. 7 & 8---Power of court to make order as to guardianship---Person entitled to apply for such order---Scope---Provisions of S. 7 of Guardians and Wards Act, 1890 are generally invoked by strangers to the minor children for their appointment as guardian to look after the welfare of minors in the event of death of at least one of the natural guardians---Section 7 is to be read with S. 8 of Guardians and Wards Act, 1890, which provides that such an application can be made by "the person desirous of being" appointed as guardian of minor---Parents are natural guardians and therefore, they do not require an order of the court to support their right to act as guardian of the minors---Court under S. 7 of Guardians and Wards Act, 1890 is not empowered to decide the title of guardian about custody of the ward. ORDER NAZAR AKBAR, JUSTICE:---.--- The Petitioner through the instant petition has challenged the…

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