745/2013 Const. P. Mst Ghulzadi (Petitioner) V/S Govvernement of sindh & others (Respondent)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar
Order Date: 27-MAY-14
(a) Criminal Procedure Code (V of 1898)--- ----S. 491---Constitution of Pakistan, Art.199---Illegal custody of minors---Constitutional petition filed before the High Court treated as a habeas corpus petition under S.491, Cr.P.C.---Scope---High Court had jurisdiction to entertain a constitutional petition as a petition under S.491, Cr.P.C.---However, in every case while exercising such powers the court was under judicial obligation to examine the facts of the case before issuing direction to police for production of minors. (b) Criminal Procedure Code (V of 1898)--- ----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minors with father/husband---Whether illegal custody---Wife deserting her husband of her own choice---Effect---Contention of wife/petitioner that her husband tortured her because of which she left him and took the children along; that subsequently her husband forcibly took away the children to his village and kept them in his illegal custody---Validity---Petitioner was wedded wife of the respondent-husband and she had not even filed any case for dissolution of marriage---Husband allegedly took away 4 children, out of which two were aged 11 years and 9 years respectively, meaning they were not of tender age---Wife had not filed any birth certificate to give exact date of birth of her children---Wife was duty bound to live with her husband at least as long as the marriage survived---Wife admittedly lived with her husband for 12 years before moving out---Wife had left/deserted her husband of her own choice, and now she could not deprive her husband to have access and even live with the children---Husband i.e. father of the children was responsible for their upbringing---Custody of children with their father could not be treated as legal in such circumstances---Wife could initiate proceeding in the Guardian Court for redressal of her grievance---Wife failed to show any exceptional/extraordinary circumstances for the High Court to exercise jurisdiction under S.491, Cr.P.C.---Constitutional petition was dismissed accordingly.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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