Law: Criminal Procedure Code (V of 1898)

Section: 491

  Criminal Procedure Code (V of 1898)- ----S. 491---Habeas corpus petition---Custody of minor---Applicant (mother) during her admission in the hospital had temporarily handed over the custody of her 1-1/2 years old son to her husband and mother-in-law (respondents) for properly looking after the minor---Mother being legally entitled to the custody of her minor son till the 'age of seven years, custody of the minor with the respondents after having been demanded by the applicant could not be considered as legal---Custody of the minor who was present in the Court with his father was consequently directed to be handed over to his mother immediately---Parties, however, could agitate the matter regarding the welfare of the minor before the Guardians and Wards Court. 1990 PCr.LJ 847; 1987 PCr.IJ 1318; PLD 1987 Kar. 239; 1987 SCMR 301 and 1985 PCr.11.1469 ref. Zia Ahmed Awan for Applicant. Muhammad Ali Mazhar for Respondents Nos.l and 2 Date of hearing: 2nd January, 1994. JUDGMENT Applicant Mst. Tayyaba Khan is wife of respondent No.2, Asif Khan. Detenu minor Umer is their son. This application under section 491, Cr.P.C. has been moved by Mst. Tayyaba against her husband Asif Khan and respondent No.l Mst. Syeda Begum, her mother-in-law, alleging that they have detained her son minor Umer aged about one and a half years under unlawful custody and that his custody be restored to her. I have heard learned counsel for the Applicant, Mr. Zia Ahmed Awan and learned counsel for the respondents, Mr. Muhammad Ali Mazhar.   According to the petition, the petitioner gave birth to another child Umer who was caesarean child and after her discharge from hospital when she came home she again felt pain and as such, was admitted in Tesleem Clinic F.B. Area, Karachi. She, therefore, handed over the custody of the minor Umer to respondent No.l, her mother-in-law for the time being. After recovery of the health the applicant went to her parents' house and when she went to the house of respondent No.l, her mother-in-law, and demanded the custody of the child, she refused to give back minor Umer to the petitioner and was beaten and ousted from the house. It is also stated…