LAHORE: The Lahore High Court has ruled that a husband and wife cannot prosecute each other on the charge of kidnapping their own minor children.

“The police authorities have no jurisdiction to interfere with a matter purely of family nature, especially relating to the custody of minors between their parents,” Justice Ali Zia Bajwa observed, allowing a petition of a man challenging an order of a district and sessions court.

The lower court had directed the police to register a criminal case against Majeed Ahmad on the complaint of Shaista Bibi on charges of kidnapping their minor daughter.

A counsel for the petitioner argued before the court that a father, being a natural and lawful guardian, cannot be termed a kidnapper of his own child. The order of the sessions court to the police to register a criminal case against the petitioner be set aside as being illegal and unlawful, he maintained.

In the instant case, both parties admitted before the court that subsequent to the impugned order, the minor girl was handed over to her mother. Litigation between the parents for permanent custody of the child is also pending before a guardian court.

In his verdict on Tuesday, Justice Zia observed that the petitioner is the real father of the minor, and under the Muslim Family Laws Ordinance 1961, as in almost every other legal system, the father is the natural guardian of the person and property of his minor child.

He observed that a mother and other female relatives of a minor, however, have been given certain rights of custody, known as “hizanat”, according to the standard textbooks, under the “Hanafi law”. Hizanat means the father is not entitled to the physical custody of a male child until he attains the age of seven years and of a female child until puberty.

During the period the child remains in the custody of the mother or other female relatives, the father is exclusively responsible to provide appropriate maintenance, he added.

He said the Supreme Court, in a number of cases, had treated the father as the natural guardian of his minor child.

The judge further observed that the offence of kidnapping was punishable under Section 363 of the Pakistan Penal Code, but a father being the legal guardian of his minor child under “Muhammadan Law” could not, in any case, take or entice away his own minor child.

He maintained that the principle of dual guardianship of a minor is by itself not repugnant to Islamic law or the law of the land. Under this concept, the guardianship of the father does not cease while the minor is in the custody of the mother, as there is nothing in the law to prevent the mother from agitating her right of hizanat when the minor is with the father.

However, a father, being the lawful guardian, taking away his own child from the custody of a mother cannot be saddled with criminal liability and charged for an offence of kidnapping, the judge observed. Allowing the petition of the father, the judge set aside the decision of the sessions court.

Published in Dawn, March 23rd, 2022