Law: Criminal Procedure Code (V of 1898)

Section: 491,561A

Criminal Procedure Code (V of 1898)--- ----Ss. 491 & 561-A---Habeas corpus---Application for recovery of minor-boy from the custody of his father, dismissal of---Right of custody of maternal grandfather (nana) and grandmother (nani) of minor---Scope---Mother of minor had passed away and he stayed in the custody of his maternal grandfather (nana)---Father of minor filed habeas corpus petition, which was allowed and custody of minor was handed over to him---Maternal grandfather of minor contended that minor had been living with his maternal grandmother (nani) who had a preferential right of custody, and that minor's father had no arrangements to look after him---Validity---Father of minor was his natural guardian and he would be in a better position to maintain and look after the child and provide him proper education and livelihood--- Although maternal grandmother had the preferential right for the custody of the minor but, in the present case, she had not come forward and instead maternal grandfather of minor was claiming the right of custody, who could not be given preference over the natural guardian viz. father---Merely mentioning that after the demise of minors' mother, he was being looked after his maternal grandmother was not enough unless she came forward and claimed such right---Application filed by maternal grandfather of minor was dismissed accordingly. 2011 MLD 1814 and 2011 YLR 348 ref. THIS ORDER PASSED BY: AFTAB AHMED GORAR, JUSTICE:---.--- Through this Cr. Misc. Application filed under section 561-A, Cr.P.C. applicant Syed Mohammad Mahmood Alam has impugned the order dated 15-8-2011 passed by IVth Additional Sessions Judge, Karachi East whereby he granted Habeas Corpus Petition filed by respondent No.1 and handed over custody of minor Mohammad Rayyan to him. Brief facts, giving rise to the filing of instant Criminal Miscellaneous Application, are that respondent No.1 was married with daughter of the applicant namely Ismat Sultana on 27-4-2008 and out of said wedlock one son Mohammad Rayyan was born on 15-12-2010. Unfortunately mother of the minor expired on 22-12-2010 and thereafter the applicant, who is maternal grand father of the child,…

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