The jurisdiction of a court adjudicating a habeas corpus petition in relation to a child cannot be confused with an ordinary habeas corpus petition where the focus of the court is on the recovery of the person illegally detained in order to uphold his Article 9 rights to life and liberty. In case of a minor, his right to liberty under Article 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, as till such time that the minor attains the age of majority he/she has a right to be taken care of whether by parents or relatives or the State. And consequently the focus of the court in a habeas corpus petition filed on behalf of a child is not just on illegal detention but on ensuring that the interim custody of the minor pending its determination by a Guardian Court is being dealt with in accordance with law.
That a habeas corpus petition filed for the lawful treatment of a minor is not to be confused with abduction or illegal detention of an adult and the consideration to be borne in mind in such matter is the welfare of the minor as recognized across common law jurisdictions.
The law laid down in Pakistan is in sync with the jurisprudence referred to above as it is now settled that in exercise of jurisdiction under section 491 of Cr.P.C, the welfare of the child is the primary and predominant consideration.
It is settled by now that jurisdiction of a court under section 491 Cr.P.C is not to be confused with the jurisdiction vested in the guardian court under the Guardians and Wards Act, 1890 and consequently it is not for the court while exercising jurisdiction under section 491 Cr.P.C to determine the entitlement of the parent to retain the custody of a minor on a permanent basis.
In a matter involving the right of a minor to be dealt with in accordance with law under section 491 of Cr.P.C, the question before the Court is not whether a child has been abducted by a parent in the ordinary sense. During the subsistence of marriage both parents have joint custody of their minor children. In the case of a matrimonial dispute or altercation between the spouses, it is not necessary that the children must be physically snatched from one parent to bring the matter within the scope of section 491 of Cr.P.C. In the event that a husband subjects his wife to abuse forcing her to leave the matrimonial home, the court cannot turn a blind eye to the circumstances in which the shared custody of the children was transformed into sole custody. In such circumstances, for purposes of section 491 Cr.P.C, it is not for the court to sit in judgment over who is at fault in the matrimonial dispute, but how would the welfare of a child be best preserved, in the interim, when joint custody of the child shared by both parents is not an option.
For a considerable period the “Tender Years Doctrine” has guided the exercise of discretion by courts in custody matters, where courts assumed that healthy development occurred when young children were raised by their mothers. However, contemporary psychological and sociologically research questions the assumption that the mother is necessarily the best parent for raising a child in all circumstances (see for example Santrock & Warshak, Father Custody and social Development in Boys and Girls, 35 J. Soc. Issues 112 (1979); Watts V. Watts, 77 Misc.2d 178, 181-182, 350 N.Y.S.2d 285, 289-90, (Fam.Ct.1973)). Research is now pointing to the need for evolving a more gender-neutral approach to child welfare given changing social structures and two-career families etc. One of the questions to ask while considering the child’s welfare in a custody matter in order to accord continuity to such welfare is which of the parents is the primary caregiver. The parent who maintains the strongest bond with the child as a result of daily attention to the child’s physical and psychological needs is regarded as the psychological parent (see J. Goldstein, A. Freud & A. Solnit, Beyond the best interests of child (1979)). In a nut shell, an important consideration for the court while addressing the question of interim custody in the child’s welfare is ensuring the continuity of care for his/her physical and psychological needs by the parent who customarily provides such care.
CRIMINAL REVISION NO. 54 of 2021
Abdul Farooq and another Vs Mst. Maryam Farooq and others
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