Law: Criminal Procedure Code (V of 1898)

Section: 491

Criminal Procedure Code (V of 1898)--- ----S. 491---Habeas corpus petition---Sessions Judge dismissed petitioner’s (mother’s) petition for production of her minor sons who had been handed over to her ex-husband by the Jirga---Validity---Minors deserved the lap of the mother due to their tender age---Order passed by the Sessions Judge was without any lawful authority---Welfare of minors was of prime importance---Petitioner being real mother of minors could better ensure their welfare---High Court accepted the petition and directed the respondent (father) to hand over the custody of minors to petitioner (mother). ORDER CH. MUHAMMAD TARIQ, JUSTICE:---.--- This criminal revision has been directed against the impugned order dated 21-4-2010 passed by the learned Sessions Judge Islamabad who directed the petitioner to approach the Guardian Judge for the custody of the minors under the Guardian and Wards Act. 2. Brief facts of the case are that the petitioner was married with respondent No.2 on 28-5-2007 in accordance with Muslim Rites. Out of this wedlock, two sons were born. During the subsistence of the marriage, a number of disputes cropped up between the parties and resultantly on 4-4-2010, respondent No.2 ousted the petitioner from his house along with the minors after giving her severe beating. The matter was referred to Jirga. As a result of proceedings before the jirga, respondent No.2 paid Rs.100,000 to the petitioner along with divorce deed and jirga without any justification and against the wishes of the petitioner, handed over the custody of the minors to respondent No.2 (father). 3. Aggrieved of the act of the jirga as well as that of her husband,. the petitioner filed a habeas petition under section 491, Cr.P.C. for production of the minors before the learned Sessions Judge, Islamabad who dismissed the same on 21-4-2010 with the observation that the petitioner, if so desires, may approach the learned Guardian Judge for the custody of the minors. Hence this criminal revision. 4. Learned counsel for the petitioner contends that the impugned order has been passed in a hasty manner which is against the welfare of the minors who are of tender age, therefore,…

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