Find a Lawyer

Criminal Miscellaneous Application No. 160 of 1967, decided on 29th May 1967.

Guardianship‑Mother of minor girl contracting second marriage with a person not within pro hibited degree to minor‑Such mother, in circumstances, loses her right for custody of minor girl.

S. 363‑Minor girl, upon her mother contracting second marriage with a person not within prohibited degrees to minor, living with her grandmother Complaint of kidnapping filed by minor's mother entertained by Police and matter sent to Court‑Matter such as could only be decided adequately upon an application under Guardians and Wards Act‑Proceedings, held, abuse of process of Court and quashed.

Makhdoom Sharif for Applicant.

Mazhar Hasan Ali Public Prosecutor for the State.

Nemo for Respondent No. 2.

Date of hearing : 29th May 1967.

This is an application by Mst. Sodi wife of Panah Ali Shah for the release of her grand‑daughter Mst. Iqbal Begum who has been ordered to be kept in Darul Aman under the orders of the A. C. M., Karachi. The girl Mst. Iqbal Begum was born out of a wedlock between Mst. Hooran, the daughter of Mst. Sodi and one Rasul Bux. This marriage was dissolved and then many years ago Mst. Hooran was married to Yar Muhammad. It appears from the statements made before me that the girl from her childhood lived with her grandmother, the present petitioner. Sometime before the 9th of August 1966 the girl was produced by her maternal uncle before the Court of the A. D. M. and she expressed a wish that she would like to go to her mother. As she had been taken out from the custody of grandmother the Court directed that she be put into Darul Aman, an institution where such women are kept. She was then produced before the A. D. M. on 9‑8‑66 and made a statement in the same way as before, whereupon the learned A. D. M. passed an order that as the mother was a legal guardian of the girl, who was still a minor, she may be allowed to go with the mother. Evidently Mst. Iqbal Begum did not like her new abode for long and ran away to her grandmother's place. She was again produced before the A. D. M. and she made a statement before him that she did not want to go to her mother for fear of being maltreated. Thereupon, the A. D. M. passed an order on 15‑10‑66 directing that the girl be put in Darul Aman until the matter is taken up by the trying Court, viz., the Court of the A. C. M. "who will pass such order as he deemed fit". The case then came up before the A. C. M. Mr. S. Ali Muhammad on 17‑11‑66 who made inquiries from the girl in open Court who stated that she wanted to go back to her grandmother, namely, Mst. Sods but not to her mother Mst. Hooran. The learned A. C. M. noticed that the medical certificate showed that the girl was about 15 years of age. As there was dispute between the mother and the grand mother the learned A. C. M. ordered that in the meantime the girl be kept in Darul Aman. It was then that the present petition was filed and I have entertained it not for the purpose of considering whether her custody in Darul Aman was unlawful but to examine whether the proceedings pending in the Court of the A. C. M. upon the complaint of kidnapping by the mother should not be quashed. I issued notice to the State and Mr. Mazhar Hasan Ali the learned P. P. has appeared before me and he produced the file of the case of the Court below. I have also recorded the statement of the girl as well as of the grandmother. The girl has struck to her stand that she wants to live with the grandmother. The notice has also been issued to Mst. Hooran, the mother, which has been served but she has not appeared.

2. It seems to be a pity that this young girl should be pushed from place to place because of the struggle for her custody which has recently started between her mother and her maternal grand mother. The last time that she was produced before the Court upon‑the complaint of the mother under section 363, P. P. C. was from the custody of the grand‑mother. She was taken hold of by the police and produced before the Court. Earlier the A. D. M. had observed that the mother was the legal guardian. That, however, is not the correct position. Yar Muhammad to whom Hooran is married does not stand within the prohibited degree to the minor. Under the Muhammadan Law, therefore, she would lose her right for custody of the minor. In any case this is a question which could only be decided adequately upon an application under the Guardian and Wards Act. Considering that the girl had lived with her grandm other who, in the absence of the mother, is entitled to the custody of her minor grand daughter under the Muhammadan Law, the complaint of kidnapping which was entertained by the police and upon which the matter was sent up to Court, was clearly an abuse of the process of the Court. At one stage the A. C. M. had himself observed that this was a matter which must be dealt with under the Guardian and Wards Act. That was the correct attitude to take. The detention of the girl in Daru Aman pending the criminal proceedings started upon the complaint of the mother which might take a considerable time, was not proper. Indeed, upon the admitted facts of the case the Criminal Court should not have entertainers the complaint.

3. The proceedings before the A. C. M. on the criminal complaint of Mst. Hooran is accordingly quashed. The girl Iqbal Begum is allowed to go with her grand mother. It would be open to Mst. Hooran or her brother, the maternal uncle of the minor, to take proceedings under the Guardian and Wards Act if they have any apprehension of the well‑being of the minor while she is in the custody of her grand‑mother.

Proceedings quashed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.