Through this petition under section 491, Cr.P.C. The petitioner sought issuance of direction for the recovery of Shah Zaib minor son aged about two years and nine months from the alleged illegal and unlawful custody of respondent Shaukat Hussain.
2. Briefly the facts are that the petitioner and respondent Shaukat Hussain were married with each other and out of their wedlock said son was born who is aged about three years now. Afterwards the petitioner was divorced by the respondent on 13-7-2004 and after the elapse of Iddat period the petitioner has contracted second marriage with Abdus Sattar Hashmi. It is claimed that the son had been living with the petitioner at Muzaffargarh, when was removed by respondent Shaukat Hussain on 13-2-2005.
3. Learned counsel for the petitioner contends that the custody of the minor with the respondent is illegal and unlawful and being mother the minor may be handed over 'to the petitioner. Relies upon Mst. Shaishta Nawaz v. Muhammad Naeem Ahmad 2004 SCMR page 990 to contend that despite contracting of second marriage the petitioner is entitled to the custody of the minor son.
4. On the other hand learned counsel for the respondent denies the allegation and contends that the minor was never removed from the custody of the petitioner as claimed in this petition. It is contended that the minor is continuously residing with his father and the petitioner has contracted second marriage with an old man having first wife and seven grown up children while the respondent has not contracted second marriage and the welfare and interest of the minor will be in his custody with the respondent. As far as the contention that the suit for maintenance was earlier filed by the petitioner and minor was removed from the custody of the petitioner to avoid payment of the same is concerned, it is stated that the respondent has, come to know about the filing of the said suit for maintenance by the petitioner just now and no notice thereof from the Court has been received by him so far. It is also contended that the custody of the minor with the respondent being father is not illegal and this petition under section 491, Cr.P.C. Is not maintainable.
5. I have heard the arguments of the learned counsel for the parties. The minor has been produced by the respondent in the Court. There is no hard and fast rule that while invoking provisions of section 491, Cr.P.C. The mother is always entitled to the custody of the minor. The case-law is on both sides and each case has to be decided keeping in view its own facts and circumstances. The pivotal question for invoking provisions under section 491, Cr.P.C. Is to show that the custody of the minor with the second party is illegal or that the minor was illegally removed from the custody of the claimant. In the present case admittedly the respondent is still unmarried and on the other hand the petitioner has contracted second marriage with Abdus Sattar Hashmi, an earlier married man having seven grown up children and first wife which factum has been concealed in this petition. The love and affection of the minor towards the respondent in the Court shows that he is residing with him continuously through some amicable settlement between the parties. Mere filing of suit for maintenance is not a conclusive proof to show that the minor was illegally removed from the custody of the petitioner on 13-2-2005 as the respondent claimed that he never received notice of the said suit. I have noticed that only copy of the plaint has been annexed with this petition but order-sheet thereof has not been annexed to show that whether the respondent was ever served or not. Therefore, custody of the minor with the respondent cannot be declared illegal. I have intentionally not commented upon merits of the case lest it may prejudice the case of either party in the appropriate proceedings.
6. In the above circumstances this petition is dismissed with the observation that any of the parties if approaches the learned Guardian Judge concerned, it shall dispose of the application within the shortest possible time without being influenced by the order of this Court.
7. Before parting with this order, as the petitioner is the real mother of the minor, and cannot be deprived of her meetings with the minor, with the consent of both the parties it is directed that on every Thursday at 5-00 p.m. The respondent will hand over the minor to the petitioner in the house of his sister married to Shaukat Hussain, brother of the petitioner at Muzaffargarh and the respondent will be bound to return the minor to the petitioner at the same place on Saturday at 5- 00 p.m. This interim arrangement will continue until is varied by the Court of competent jurisdiction.
Today the minor has been given to the custody of the petitioner and she will return him to the respondent at the above place by tomorrow at 5-00 p.m.