Law:

Section:

Criminal Procedure Code (V of 1898)---S.491---Guardians and Wards Act (VIII of 1890), Ss. 17 & 18--¬Custody of minor---Power of High Court to issue directions in the nature of habeas corpus under S. 491, Cr.P.C.---Scope---Principles--¬Constitution of Pakistan (1973), Art. 185---Habeas corpus petition for the custody of the minor---High Court allowed the application of the father of the minor mainly on the ground that the mother on contracting second marriage lost her right of Hizanat and was no more entitled to retain the custody of the minor and directed for delivery of custody to the father with the observation that the mother, if so desired, could approach the Guardian Court concerned for custody of the minor---Validity---Mother before contracting second marriage was entitled to retain the custody of minor in exercise of her right of Hizanat and on her re-marriage, despite losing her preferential right of custody, she could still be entrusted and allowed such custody in the welfare of minor as neither she would lose absolute right of custody of minor nor the father, on her re-marriage, would ipso facto become entitled to the custody of child---High Court, in the present case, instead of disturbing the custody of minor with the mother under S.491, Cr.P.C. should have directed the father to approach the Guardian Court for the relief which was being sought from the High Court as at the time of passing of the impugned order, the minor was not in illegal or improper custody---Supreme Court, while converting the petition for leave to appeal into, appeal, set aside the of the High Court. In the matters pertaining to the custody of minors of tender age, the High Court is empowered to issue directions in the nature of habeas corpus under section 491, Cr.P.C. if the custody of the minor was illegally or improperly disturbed. Section 491, Cr.P.C. provides a more efficacious, speedy and appropriate remedy, in a case of illegal or improper custody of minor and the High Court can pass an order, regarding the temporary custody without prejudice to the rights of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardians…

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