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Criminal Miscellaneous No. 32/H of 1975, decided on 29th January, 1975.
-- S. 491-Guar fans and Wards Act (VIII of 1890), S. 25-Custody of minor girl-Entitlement, held. a matter to be determined by Family Court-Illegal custody-High Court competent to exercise jurisdiction under S. 491, Cr. P. C.
-- S. 491-Detenu girl taken away by father in improper manner without having recourse to law-Custody of girl with father, held, illegal-Girl handed over to custody of mother.
Ch. Muhammad Yaqub Sindhoo for Petitioner.
Respondent in person.
The petitioner moved this application alleging that respondent No. 1 with the help of respondent No. 2 took away forcibly from her custody Bilquis, aged about 7 or 8 years. I, by my order, dated the 15th of January 1974, directed that notice should issue to Allah Ditta respondent for the 29th of January, 1975.
2. Respondent Allah Ditta is present and Bilquis has also been produced by Muhammad Yusouf Assistant Sub-Inspector Police Station Kamalia, Mr. A. S. Najam, Assistant Advocate-General was present in the Court. With his help I questioned Mst. Bilquis. She started crying and stated that she wanted to live with her mother and that she had been taken away forcibly by the respondent with the help of Thanedar. It-is manifest that the custody with the respondent, as obtained, of his daughter was in a manner which was illegal. Whether or not a person is entitled to the custody is a matter which can be determined by the Family Court but in the circumstances, when the custody is illegal it is competent for us to exercise jurisdiction under section 491, Cr. P. C. Since Mst. Bilquis the allegal detenu, had been taken away in improper manner without having recourse to the law the custody of the respondent shall be illegal action. She should be handed over to the mother, the petitioner. However, this will be without prejudice to the right of the parties to resort to the Family Court for the custody of the minor.
M. Y. H. Appeal dismissed
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