LAHORE: The Lahore High Court (LHC) has set aside a Rs700,000 surety bond and a travel restriction imposed on a mother granted interim custody of her infant son, holding that disproportionate curbs on the movement of a child and its mother are inconsistent with constitutional freedoms.
Justice Asad Ali Bajwa delivered a 10-page written judgment on a petition filed by Misbah Bibi. The judgment has been declared a precedent.
The petitioner challenged an order of the Additional Sessions Judge, Sheikhupura, dated August 10, 2026. That order handed custody of a boy aged approximately one year to the petitioner while requiring her to furnish surety bonds of Rs700,000 and barring her from taking the child outside the court’s territorial jurisdiction except in a medical emergency.
Counsel for the petitioner argued that both conditions amounted to an excess of legal authority, because the court’s power under Section 491 of the Code of Criminal Procedure is limited in nature.
Counsel for the opposing party defended the conditions, submitting that both fell within the jurisdiction conferred by Section 491 and were lawful.
The Lahore High Court held that the power available under Section 491 CrPC is extraordinary and emergent in character, its primary purpose being to make interim arrangements for the custody of a minor. A determination of permanent custody, the court said, falls within the jurisdiction of the guardian court.
The court held that once custody of the minor had been handed to his natural mother, imposing a Rs700,000 surety and a restriction on taking the child outside the court’s territorial limits exceeded the confined jurisdiction of Section 491.
Section 491 cannot be used to impose unnecessary restrictions on a mother’s liberty and movement, the judgment states. If the opposing party fears the child may be taken beyond the guardian judge’s jurisdiction, it may seek appropriate relief from the relevant guardian court.
The court further held that an indefinite or permanent restriction on the liberty of a mother and child cannot be imposed on the basis of a possible apprehension. Any such restriction must be temporary, proportionate and confined to the purpose for which it was imposed.
Imposing a disproportionate restriction on the movement of a child and mother, the court said, is contrary to constitutional rights and the principles of personal liberty.
The judgment clarifies that the core object of Section 491 is release from unlawful detention and the restoration of a minor, through an emergent or temporary arrangement, to the parent from whom the child has been unlawfully deprived. It is not a substitute for the procedure available under the Guardians and Wards Act 1890.
The guardian court alone, the judgment states, is the competent forum to decide interim and permanent custody and guardianship, and a court acting under Section 491 cannot impose conditions that intrude on that jurisdiction.
The petition was allowed and both conditions were struck down.
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