SADIA AZIZ vs D.P — 2025 PLD 540 LAHORE-HIGH-COURT-LAHORE

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SADIA AZIZ VS D.P.O. Vol. V, Chap. 4-F, Rr. 1 to 18---Constitution of Pakistan, Art. 199 (1)(b)(i)---Criminal Procedure Code (V of 1898), S. 491---Proceedings under S. 491 of Cr.P.C.---Forum(s)---Scope---Proceedings under S. 491 of Cr.P.C. can be initiated before the Sessions Judge or Additional Sessions Judges and before the High Court if any person is in illegal and improper custody; similar relief can also be sought by a party under Art. 199(1)(b)(i) of the Constitution through writ of Habeas Corpus when any person is in custody without lawful authority or in unlawful manner---Article 199(1)(b)(i) of the Constitution is usually applicable on malfeasance, misfeasance and nonfeasance of any party with respect to custody of a detenu---However, High Court (Lahore) Rules and Orders do not create any difference in the format of petition and style of orders in both types of petitions; Chapter 4-F, Volume-V of High Court (Lahore) Rules and Orders consists of rules framed by the High Court under S. 491(2) of Code of Criminal Procedure, 1898, which regulate the proceedings on petitions under S. 491, Cr.P.C.---Such Rules further clarify that Chapter-4, Part-J of Volume V deals with rules for the issuance of orders/directions under Arts. 199 & 202 of the Constitution and Clause 27 of the Letter Patent---According to Part-1 of Part-J, such application shall be governed by Rr. 1 to 18 of Chapter 4-F, Volume-V of High Court (Lahore) Rules and Orders, which means Rr. 1-18 shall also be applicable on habeas petition filed under Art. 199 of the Constitution---Thus, in appropriate cases order for recovery of minor can be issued under Art. 199 of the Constitution. Citation Name: 2025 PLD 540 LAHORE-HIGH-COURT-LAHOREBookmark this Case SADIA AZIZ VS D.P.O. Walayat (Guardianship) and Hizanat (Custody)---Difference---Mother, entitlement of---There is difference between Walayat (Guardianship) and Hizanat (Custody); in Muslim Law, as in almost every other system of law, the father is the natural guardian of the person and property of his minor child but Islam recognizes the mother as having prior right of custody, obvious reason is the nourishment, sustenance, patronage and upbringing of a human child so as to make him/her a useful human being---Mother keeps a caring instinct, therefore, is the suitable person for such task; that is the reason, for custody, the term 'Hizanat' has been used---Word “Hizanat” is derived from the Arabic word “Hizan” which means 'lap of the mother', it denotes giving a child to the mother's lap for caring and rearing; which signifies love, care and affection directly and constantly needed by a male child up to the age of seven years and female child till she attains puberty---Care, love and affection play a vibrant and vital role in developing the nature and character of a person and as such Hizanat can safely be termed as a tribute and privilege of a minor assigned and vested in the mother---Woman who holds the custody is called “Hizana” and she loses the right of hizanat in certain circumstances suggested in the law---As per Para 352 of Muhammadan Law, mother is entitled to custody of male child until he has completed the age of seven years and her female child until she has attained puberty---Such right continues even if she is divorced by the father of the child; however, if she marries a second husband, stranger to child, in which case custody belongs to the father but subject to determination by Guardian Court---There are certain conditions which disqualify females for custody---Para 354 of Muhammadan Law says that a female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody in certain situations---Under the law mother has a preferential right for custody of a minor till the prescribed age---Even if divorce has become effective between the spouses, mother does not lose her right of hizanat except in the situations mentioned in Para 354 of Muhammadan Law subject to determination by Guardian Court---In the present case, the circumstances warranted that minor being of tender age required the lap of mother; therefore, interim custody of minor was regulated in favour of petitioner/mother who shall be bound to produce him before the Gurdian Court where the proceedings were pending, yet subject to final determination by the Guardian Court as to the rights of parties for custody and visitation of minor---Constitutional petition, filed by mother of minor, was disposed of. Citation Name: 2025 PLD 540 LAHORE-HIGH-COURT-LAHOREBookmark this Case SADIA AZIZ VS D.P.O. S. 491---Constitution of Pakistan, Art. 199(1)(b)(i)---High Court (Lahore) Rules and Orders, Vol. V, Chap. 4-F---Habeas petition filed before the High Court---Maintainability---Claim of respondent/father was that custody of father was neither illegal nor improper, therefore, habeas petition was not maintainable---Validity---Under S.491, Cr.P.C. the High Court exercises two-fold jurisdiction; firstly, to direct the production of a person who is illegally detained to be brought before the Court so as to set him at liberty; and secondly, to direct the production of a person so that he be dealt with in accordance with law---In the latter case, it is not essential that the detention must be by use of force; if a person has been confined in a manner not warranted by law, in that situation also the Court can issue appropriate direction under S. 491, Cr.P.C. Citation Name: 2025 PLD 540 LAHORE-HIGH-COURT-LAHOREBookmark this Case SADIA AZIZ VS D.P.O. Conflicting views expressed in text books on Muslim Law (such as Hedaya, Fatawai-i-Alamgiri, Radd-ul-Mukhtar, Muhammadan Law by Sayyed Amir Ali, etc.)---Question as to how the Courts shall determine which view is correct?---Held that where there is no Quranic or traditional text or an Ijma' on a point of law, and if there is a difference of views between A'imma and Faqihs, a Court may form its own opinion on a point of law. Citation Name: 2025 PLD 540 LAHORE-HIGH-COURT-LAHOREBookmark this Case SADIA AZIZ VS D.P.O. Hizanat---Scope---Hizanat is regulated through Muslim Personal Law of the parties; under the Shia Law mother is entitled to the custody of male child until he attains the age of two years and if female child until she attains the age of seven years.---After the child has attained the abovementioned age, the custody belongs to the father---Under Shafei Law the mother is entitled to the custody of her daughter even after she has attained puberty and until she is married.

SADIA AZIZ vs D.P — 2025 PLD 540 LAHORE-HIGH-COURT-LAHORE

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