Law: Code of Criminal Procedure (CrPC), 1898

Section: 491

Law: Constitution of Pakistan, 1973

Section: 199

Criminal Procedure Code (V of 1898)-------S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Custody of minor children---Interim arrangement---Petitioner / father was aggrieved of order passed by Trial Court handing over custody of minors of tender age to respondent / mother---Plea raised by petitioner / father was that custody of minors with him was not illegal---Validity---In a matter involving right of a minor to be dealt with in accordance with law under S.491, Cr.P.C., the question before the Court is not whether the child is abducted by a parent in ordinary sense---During subsistence of marriage both parents have joint custody of their minor children---In a case of matrimonial dispute or altercation between spouses, it is not necessary that children must be physically snatched from one parent to bring the matter within the scope of S.491, Cr.P.C.---In the event husband subjects his wife to abuse forcing her to leave matrimonial home, Court cannot turn a blind eye to the circumstances in which shared custody of children was transformed into sole custody---For the purposes of S.491, Cr.P.C, it is not for the Court to sit in judgment over who is at fault in matrimonial dispute but how would welfare of a child be best preserved in interim when joint custody of child shared by both parents is not an option---Trial Court while passing order in question rightly observed that the minors were of tender ages, therefore, keeping in view their welfare, custody was handed over to respondent / mother---High Court directed petitioner / father to approach Guardian Court for permanent custody of minors and declined to interfere in the order passed by Trial Court---Constitutional petition was dismissed, in circumstances.The Halsbury's Laws of England, Fourth Edition, Vol.24 para 511; Habeas Corpus, Vol. I, PP.581by Baily; McGrath, Re, 1893 1 Ch 143; American Jurisprudence, Second Edition, Vol. 39 para 148; Howarth v. Northcott 152 Conn. 460; Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad v. Sultan Zari PLD 1997 SC 852; Mirjam Abberras Lehdeaho v. Station House Officer, Police Station Chung, Lahore and others 2018…

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