Law: Criminal Procedure Code (V of 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---Adoption---Islamic law---Petitioner through Constitution petition sought custody of her minor son---Record showed that the minor was put up for adoption and he was adopted by respondent No. 3 and started to live with him---Petitioner claimed herself to be the biological mother of minor and sought his custody--Maternity of the minor was determined from the Forensic Science Agency--According to the report of Forensic Science Agency, the conclusion, which had been drawn after the DNA analysis, was that the minor was the biological child of the petitioner---Adoption of a child with the purpose of providing shelter to him was virtuous and carried much reward for welfare of the child but adoption in Islam had no legal consequence---Child should be attributed to the natural parents, and not to the father or mother who had adopted him---Adoption did not create a new legal relationship which did not exist before adoption---Adoption under 'Muslim Law' did not create any kindred relationship between the adopted child and adoptive parent, whosoever---Therefore, the Court was left with no other option but to allow the petition and to hand over the custody of minor to the petitioner, who had been determined to be the biological mother of the child/minor---However, Guardian Court was the final arbitrator to adjudicate upon the question of custody of child but that did not mean that in exceptional cases when a person had no remedy to regain the custody pending adjudication by the Guardian Court---In exceptional cases where the High Court found that the interest and welfare of the minor demanded that the minor be committed immediately to the custody of his biological mother, the Court could pass an appropriate order under Art. 199 of the Constitution directing the custody of a minor to the biological mother as an interim measure pending final decision by the Guardian Court---Petition was allowed, in circumstances.Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others 2018 SCMR 427; Ahmed Sami and 2 others v. Saadia Ahmed and…