Hira Mashooq vs S.S — 2025 MLD 760 HIGH-COURT-AZAD-KASHMIR

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Hira Mashooq VS S.S.P District Mirpur Ss. 561-a & 491---Inherent power of High Court---Matter of custody of minor child---Scope---Petitioner (mother) had filed application for restoring interim custody of the alleged detenue/ minor, who was forcibly removed from her custody by grandfather, but said application was turned down---Validity---as per record the minor was removed from the natural guardianship of the petitioner¬¬¬---High Court under S.491, Cr.P.C, could not sit over the matter to decide the custody of the minor permanently as it was within jurisdictional domain of the Guardian Court, however as a stopgap measure High Court in the interest of minor, keeping in view his welfare, could decide his interim custody---Grandfather could not be preferred over natural guardian i.e. mother---In such like eventuality when father was also abroad, mother would be in better position to maintain and look after the child and provide him proper livelihood particularly when the mother (petitioner) took the plea that respondent had removed the custody of minor forcibly---Mother of the minor properly maintained the minor and after her marriage with another person whether she had lost her right of custody and also what was in the interest and welfare of the minor required thorough evidence to be recorded which could only be done before a Guardian Court---Minor was produced before the Court, and his grandfather, who was a man of old age also appeared in person---Seemingly the minor was under pressure and frightened and prior to any reply he was looking at the face of his grandfather---So far as the stance of the respondent that the petitioner herself had waived/quit the right of custody through an out of Court agreement, was not tenable in law---It was a matter of enforcement of constitutionally guaranteed rights of minor who under the law was to be given in the custody of mother as a natural guardian (until the Guardian Court finally decides the matter of legal custody of the minor)---age of minor was approximately 5/6 years and his father was admittedly abroad---Both parents were natural guardians of the minor and entitled for interim custody, but in the absence of one of the natural guardian/father a minor of tender age should not usually be given in the interim custody of someone else other than mother---Depriving a minor from the custody of one of the natural guardians in guise of any agreement to give him in the custody of someone else other than natural guardians was improper---Thus, Court was inclined to give the minor in the interim custody of the real mother as a natural guardian---Petition was disposed of accordingly.

Hira Mashooq vs S.S — 2025 MLD 760 HIGH-COURT-AZAD-KASHMIR

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