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Criminal Miscellaneous No. (sic.) of 1969, decided on 5th July 1969.

S. 491‑Habeas corpus‑Detention of minor against wishes of lawful guardian Prima facie illegal‑Consent of minor‑Held, immaterial.

Divorced wife made application under section 491, Cr. P. C. alleging that the children were being detained by their father (her husband) against her wishes though she was the lawful guardian. It was contended on behalf of the father that the children were not being detained against their will. The conten tion was rejected and the High Court held that "the children are all minors; the question of their consent, therefore, does not arise", and "the detention of the minor children by the father against the wishes of the lawful guardian i.e., the mother is illegal and improper.

Kh. Muhammad Shafi for Petitioner.

B. A. Farooqi for Respondent.

Mst. Safia Bibi moved this application under section 491, Cr. P. C. alleging that she had been divorced by her husband, Ghulam Hussain Shah respondent on 17‑6‑1969 but that the respondent had taken from her children‑Lail Shah son aged about 31 years, Mst. Tazeema daughter aged about 41 years and Mst. Perveza daughter aged about 7 years. She prayed that the children who are being detained by the father against her will be ordered to be brought before the Court and restored to her as she is their lawful guardian. The Kahori Police was ordered to produce the children before this Court which they have done today.

It has been argued by the learned counsel for the respondent that the children were not in illegal custody and that they were not being detained against their will. He requested that the statement of the Police Officer who produced the children may be recorded but I think it is not necessary at all.

The writ of habeas corpus is frequently resorted to in order to obtain the custody of the children and often times to determine the rights of the parties to their custody. The children are all minors. Therefore, the question of their consent does not arise. Where a person is legally entitled to 9 the custody of a child, the detention of the child by any other person is illegal. If the person who is alleged to be illegally detained is an adult, the case presents little difficulty or that there has been no wrongful detention. But in the case of a Minor he cannot be said to be capable of giving consent and the detention against the wishes of a lawful guardian is prima facie illegal.

Learned counsel for the respondent has also argued that the welfare of the minor may be considered. I think I had bettor leave this matter for the consideration of the Guardian Court. Under the Muhammdan Law the mother is the lawful guardian of her minor sons up to the age of 7 years and of the minor daughters till they attain the age of puberty. So the mother, the petitioner, is the lawful guardian of the 3 minor children produced before me as against the respondent who is the father. Therefore, I have no hesitation in holding that the detention of these minor children by the father against the wishes of the lawful guardian i.e. the mother is illegal and improper. I, therefore, order that all the 3 minor children be] allowed to go away with their mother. Of course, this order shall be subject to the order of the Guardian Court.

The habeas corpus petition is accepted.

A. S.

Petition accepted.

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