Kaneez Fatima, a mother of four children failed to recover her children in the Sessions Court Lahore in her first Habeas Petition, where she was instructed to go to the guardian court since her husband had already filed a guardian petition and had also obtained a restraining order against removal of the children from his custody.
The legal question permeating from her predicament was primarily the maintainability of the Habeas Petition during the pendency of a guardian petition.
Fortunately, the issue had already been dealt with conclusively by the Honourable Supreme Court of Pakistan in the case of Mirjam (2018 SCMR 427 ), filed and won by the late Asma Jahangir, where the Supreme Court had laid down factors entitling a petitioner to the remedy of a Habeas Summary Judgment even during the pendency of a guardian petition. Relying upon the same, AGHS approached the Honourable Lahore High Court and the matter was vehemently contested by both parties for two days consecutively but unfortunately our petition was dismissed on technical grounds again.
Feeling aggrieved and concerned for the client and the minors of tender age, AGHS approached the Honourable Supreme Court of Pakistan in appeal. It was only because of the diligence and persistence of the AGHS legal team, the case was fixed in the same session and the minors were also ordered to be produced. On the date fixed, the Supreme Court heard our petition and restored the custody of the minors to the mother pending decision of custody by the learned guardian court Lahore.