PLJ 2023 Lahore (Note) 30
Constitution of Pakistan, 1973--
----Art. 199--Dentention of minor--Agreement for custody of minor--Agreement was not signed by petitioner--Value of agreement Coercion and undo influence--Any agreement, though disputed by petitioner, even if executed with regard to handing over custody of minor, has no value in eyes of law and cannot be relied upon--If an agreement is entered into by a female which appears unconscionable on face of it, there is a rebuttable presumption that agreement was entered into by coercion and undue influence--A Guardian Court is final arbitrator to adjudicate upon question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain custody--Petition allowed. [Para ] A, B & C
1995 PCr.LJ 307, 1997 MLD 1562 & PLD 1970 Karachi 619 ref.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 4(2)--Guardian--Means a person providing de facto or de jure care of person or property of a minor--Such a person may or may not have custody of a minor. [Para ] E
Guardian and Wards Act, 1890 (VIII of 1890)--
----Ss. 4(2), 9(i) & 25--Guardianship and custody--Under Sections 4(2), (S), 9(i) and 25 of Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. [Para ] D
Constitution of Pakistan, 1973--
----Art. 199--Parental jurisdiction--High Court, in exercise of its jurisdiction under Article 199 of Constitution has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to welfare of minor and to ensure that no harm or damage comes to her physically or emotionally by reason of breakdown of family tie between parents. [Para ] F
2018 SCMR 427 & 2018 SCMR 1991.
Ch. Nazeer Ahmad Jutt, Advocate with Petitioner.
Mr. Ansar Yasin, Deputy Prosecutor General for Respondents.
Ch. Muhammad Saeed, Advocate for Respondent No. 5.
Date of hearing: 12.10.2022.
PLJ 2023 Lahore (Note) 30
[Multan Bench, Multan]
Present: Sadiq Mahmud Khurram, J.
Mst. FARZANA PARVEEN--Petitioner
versus
CITY POLICE OFFICER and 4 others--Respondents
W.P. No. 14457 of 2022, decided on 12.10.2022.
Order
In compliance of the order dated 28.09.2022, the minor detenue namely Muhammad Abdullah, aged about 9 years, has been produced before the Court by Akmal Hussain (Respondent No. 3), her father.
2. This petition has been filed by the petitioner regarding the alleged illegal and improper detention of her minor son namely Muhammad Abdullah, aged about 9 years by Akmal Hussain (Respondent No. 3). As per contents of this petition, the minor was removed from the custody of the petitioner when he was coming back from Madrassa and she got lodged an F.I.R No. 1355 of 2022 at Police Station Seetal Mari, District Multan regarding his abduction. During the course of investigation of the case, the minor namely Muhammad Abdullah was recovered and has been produced before the Court today. The minor Muhammad Abdullah, aged about 9 years had been living with his mother since his birth. Learned counsel for the Respondent No. 5 has presented a copy of agreement dated 05.09.2022 executed on a stamp paper, to the effect that the petitioner had surrendered the custody of the minor Muhammad Abdullah, aged about 9 years of her own accord and with her own consent to Respondent No. 5 namely Muhammad Shafi on 05.09.2022. It is further stated in the deed that the petitioner shall not approach any forum or Court to seek the return of her minor son namely Muhammad Abdullah, aged about 7 years. The petitioner when confronted with the said divorce deed, has repudiated the same. She denies under oath that she had executed this document. She states that the minor was taken from her on the pretext of visiting the father and was not returned to her. I have examined the document, which purports to be a deed and obviously it does not bear the signatures of the petitioner, hence, the petitioner cannot be bound by the contents of the same. The circumstances of handing over of the minor to his father namely Muhammad Shafi (Respondent No. 5) are mired in controversy as the Respondent No. 3 is claiming that the minor was handed over to him in consequence of the agreement effected between him and the petitioner whereas the petitioner is claiming that the minor was removed/snatched from her custody. It is not disputed by both the parties that divorce was effected between the parties. It is also not disputed that prior to divorce, the minor had been living with the petitioner. Any agreement, though disputed by the petitioner, even if executed with regard to the handing over the custody of the minor, has no value in the eyes of law and cannot be relied upon. There can be no dispute that questions concerning the custody and guardianship of minors cannot be settled by a private compromise or even by arbitration. An agreement of this nature, therefore, cannot be enforced. If an agreement is entered into by a female which appears unconscionable on the face of it, there is a rebuttable presumption that the agreement was entered into by coercion and undue influence. No effective rebuttal is forthcoming to show as to why the petitioner would voluntarily part with her minor son. Hence the purported agreement to handover the custody of the minor to the Respondent No. 5 has no value in the eyes of the law. Reliance is placed on the cases of “Mst. Shehnaz Bibi Versus Muhammad Akram and others” (1995 PCrLJ 307), “Mst. Riffat Bibi versus Amanat Ali” (1997 MLD 1562), “Afshan Naureen Versus Nadeem Abbas Shah” (1997 MLD 197) and “Mst. Tahera Begum Versus Saleem Ahmed Siddiqui” (PLD 1970 Karachi 619). It would only be the learned Guardian Judge who would be in a position to determine the welfare of the child in proceedings if initiated before the same. At present this Court finds it proper and in the interest and for the welfare of the minor to hand over the custody of the minor Muhammad Abdullah, aged about 9 years to his mother, the petitioner, with whom she had lived since his birth and the bond of love and affection exists between the mother and the child and at present there does exist no reason to break the same. It is true that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody. In Arabic language, guardianship is termed as wilayat and custody as hidhanat. Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE/691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under Sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction arid is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to her physically or emotionally by reason of the breakdown of the family tie between the parents. Reliance is placed on the case of “Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others’’’ (2018 SCMR 427). Reliance is also placed on the case of “MST. Madiha Younus VS. Imran Ahmed” (2018 SCMR 1991).
3. In view of the above discussion, this petition is allowed and the custody of the minor namely Muhammad Abdullah, aged about 9 years is ordered to be handed over to the petitioner. It has been brought to the notice of the Court that Respondent No. 5 intends to file application/applications under provisions of the Guardian & Wards Act, 1890. It is, therefore, directed that if and when such application/applications is/are filed by the Respondent No. 5, the learned Guardian Judge shall decide the same strictly in accordance with the law and expeditiously, preferably within a period of three months of the filing of the same. It is also directed that the petitioner shall produce the minor before the learned Guardian Judge if, as and when directed by the said Court so as to allow Muhammad Shafi (Respondent No. 5), the father of the minor, to meet with the minor. However, Muhammad Shafi (Respondent No. 5) shall not be allowed to take the minor out of the premises of the Court of learned Guardian Judge. It is also made clear that any such petition filed before the Court of the learned Judge Guardian Court shall be decided on its own merits, without being influenced in any manner by any observation made in this order.
(Y.A.) Petition allowed
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