PLD 2022 ISLAMABAD 120
S. 491—Constitution of Pakistan, Arts. 9 & 199(1)(b)(i)—Constitutional petition—Habeas corpus, writ of—Custody of child—Scope—Jurisdiction of a Court adjudicating a habeas corpus petition in relation to a child cannot be confused with an ordinary habeas corpus petition where focus of Court is on recovery of the person illegally detained in order to uphold his right to life under Art. 9 of the Constitution—In case of a minor, his rights to liberty under Art. 9 of the Constitution entails a right to be in the custody of the person who ought to have the custody of the minor in accordance with law, till such time the minor attains age of majority he/she has a right to be taken care of whether by parents or relatives or the State—Focus of Court in a habeas corpus petition filed on behalf of a child is not just on illegal detention but on ensuring that interim custody of minor pending its determination by a Guardian Court is being dealt with in accordance with law.
Custody of minor—Tender Years, doctrine of—Applicability—Petitioner and respondent were husband and wife inter se and petitioner sought recovery of his minor children who were with their mother i.e. the respondent—Validity—Habeas corpus petition filed for lawful treatment of a minor was not to be confused with abduction or illegal detention of an adult—Consideration in such matter was welfare of minor—Court could not turn a blind eye to the circumstances in which shared custody of children was transformed into sole custody—For the purposes of S.491, Cr.P.C., it was not for the Court to sit in judgment over as to who was at fault in matrimonial dispute but how would welfare of a child was best preserved in interim when joint custody of child shared by both parents was not an option—“Tender Years, doctrine of” guided exercise of discretion by Court s in custody matters, where Court s assumed that healthy development occurred when young children were raised by their mothers—Contemporary psychological and sociologically research questioned assumption that mother was necessarily the best parent for raising a child in all circumstances—Guardian petition was filed by petitioner before Guardian Court and it was for such Court to determine wherein the welfare of children lied for granting custody in the event that petitioner and respondent were unable to resolve their matrimonial disputes—High Court directed Guardian Court to decide question of custody in accordance with law—Constitutional petition was disposed of accordingly
