Law: Criminal Procedure Code (V of 1898)

Section: 491,561A

Law: Family Courts Act, 1964

Section: 5

Criminal Procedure Code (V of 1898)--- ----S. 491---Custody of minor---Habeas Corpus Petition---Maintainability---Petitioner claimed that her minor daughter had been detained by respondent/father of the minor improperly and illegally; whereas she being mother of minor had the right to take back custody of minor who was hardly seven years old---Trial Court issued notice to respondent with direction to produce the minor and in open court minor was given choice to select one out of the parents and the minor wished and opted to live with her father/respondent---Such factor was relevant for disposal of petition under S.491, Cr.P.C.---Apart from that an unlawful custody by father of the minor could not be spelt out---Proceedings under S.491, Cr.P.C. in character were summary in nature and where question of lawful and unlawful custody of the victim was before the court, then examination and recording of parties evidence was always necessary---Remedy under S.491, Cr.P.C. was altogether different exercise of jurisdiction as those laid down by Guardians and Wards Act, 1890 or under S.5 of the West Pakistan Family Courts Act, 1964---In the habeas corpus petition, matter was to be solved summarily relating to illegal and improper detention of a person in public or private custody by police or a private person without legal authority or jurisdiction, when it would become the duty of the court to interfere, take immediate steps and action for production of the detenue---Court could direct immediate release of the detenue, but no other relief was possible in exercise of jurisdiction under S.491, Cr.P.C.-As against that when due to matrimonial dispute between the parents, leading to litigation for custody of minor children, proper remedy would lie in the court of Guardian Judge or Family Court, which, in parental jurisdiction in a more appropriate, legal, proper and effective manner could resolve the controversy in the light of evidence keeping in view the best interest and welfare of the minor---Matter in the case fell within the jurisdiction of Guardian Judge or Family Court and not through habeas corpus petition under S.491, Cr.P.C.---Petition was dismissed. THIS JUDGMENT…

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