LAHORE: The Lahore High Court has struck down conditions imposed by a district court on a mother requiring her to furnish a Rs700,000 surety bond and barring her from taking her one-year-old child outside its territorial jurisdiction, ruling that such restraints had no basis under the law used to restore custody to her.

Justice Asad Ali Bajwa held that once a court restores a child’s custody to a fit parent under Section 491 of the Criminal Procedure Code (CrPC) — a habeas corpus provision meant to secure a person’s release from alleged unlawful detention and arrange interim custody in urgent situations — it cannot use the same limited jurisdiction to impose restrictions on the parent’s liberty or freedom of movement.

The judge observed that the petitioner, Misbah Bibi, being the child’s biological mother, had been found fit by the sessions court to have custody restored to her.

Having reached that finding, the sessions court had no authority to impose conditions that curtailed the ordinary liberty of the petitioner and the minor, including preventing them from residing at the mother’s parental home in another district, Justice Bajwa held.

Section 491 cannot be used to restrict parent’s liberty, Justice Asad holds

He noted that Section 491 of CrPC provides protective and remedial jurisdiction and is not a mechanism for imposing lasting restraints on a parent to whom lawful custody has already been handed over.

The judge observed that no circumstances had been recorded to suggest that the mother was likely to defeat the jurisdiction of the appropriate Guardian Court. A mere apprehension that the child might be removed could not justify an indefinite restriction on the mother’s and child’s constitutional rights to liberty and freedom of movement, he added.

Justice Bajwa drew a distinction between the emergency, stop-gap nature of proceedings under Section 491 and the separate jurisdiction of the Guardian Court under the Guardians and Wards Act, 1890, which is empowered to determine questions of permanent or long-term custody.

He held that any restrictions on a parent’s movement with a child fell within the Guardian Court’s domain, rather than that of a sessions judge exercising summary powers under Section 491 of the CrPC.

The petitioner had approached the LHC after an additional district and sessions judge of Sheikhupura, while restoring her child’s custody to her on Aug 10, 2026, ordered her to furnish a surety bond of Rs700,000 with a local surety. The judge also barred her from taking the child outside the court’s territorial jurisdiction except in case of a health emergency.

The mother had been living with her parents in Hafizabad district following her desertion.

Her counsel argued that the conditions exceeded the lower court’s jurisdiction under Section 491 of the CrPC.

The child’s father opposed the petition, arguing that the conditions were lawful. He also questioned the maintainability of the mother’s petition before the high court.

Justice Bajwa, however, held that the conditions imposed by the sessions judge were “completely alien” to the scheme and object of Section 491.

He explained that the jurisdiction under Section 491 was summary in nature and primarily intended to secure release from alleged illegal or improper detention.

The judge allowed the mother’s petition and set aside the impugned decision of the sessions court.

Published in Dawn, September 10th, 2026