' Mst. Faiza Ahsan, the petitioner, has brought this petition under section 491, Cr.P.C. For the recovery of her daughter Mst. Manayal Fatima Kazmi (hereinafter called the minor), from the allegedly illegal and unlffwful custody of her husband Syed Ahsan Raza Kazmi, father of the minor, (respondent No.1) and for her custody.
2. The petitioner was married to respondent No.1 on 1-1-1996. The minor was born on 27-11-1999.
According to the petitioner, the relationship between the spouses deteriorated after the birth of the minor and eventually after about four years on 20-9-2003 she was turned out by her husband from his house. Her husband kept the minor with him. The petitioner has alleged that all her efforts through the family members of both the sides for obtaining the minor's custody have failed. She also alleged that the minor's health was in "severe danger" if her custody was not handed over to her.
3. This Court was not inclined to have the minor recovered through a bailiff. However, on being told by the learned counsel for the petitioner that there was a likelihood of the minor being removed from the jurisdiction of this Court, a bailiff was deputed to recover and produce her on 26-9-2003.
4. The minor was ultimately produced in this Court on 7-10-2003 by her father as earlier the father and daughter had reportedly been out of Lahore.
5. Respondent No.1 controverted the contentions raised in the petition and in fact filed an application bearing Crl. Miscellaneous No.1630/M of 2003 contending therein that the petitioner had sworn a false affidavit in that it was proven from certain notices sent by her through registered Post A.D. That she had in fact left the house of the petitioner in July, 2003. In this petition, Syed Shaukat Ali Kazmi (respondent No.2), the father of respondent No.1 prayed for initiation of proceedings against the petitioner for having sworn a false affidavit before this Court.
6. On the very first day, when the minor had been produced before me i.e. On 7-10-2003, on being informed that there were chances of reapprochment between the parties, the following order was passed:-- "Minor has been produced in the Court and remained with her mother exclusively for three hours. It is stated that there are bright chances of rapprochement between the parties and efforts are afoot in this regard. At the joint request of the parties the case is adjourned to 10-10-2003 on which date the minor shall again be produced in Court."
' The case was adjourned even thereafter on several occasions giving the parties an opportunity to effect a compromise. This Court was very liberal in acceding to the requests for adjournments. That was done with the hope that better sense would prevail between the parties. It cannot be ever emphasized that minor's welfare could be best served if she could be spared the pain and agony of a broken home. However, unfortunately this was not to be.
7. I have heard the learned counsel for the parties at quite some length. This petition had been filed in September, 2003. I have had ample opportunities of observing the minor, her health and the manner in which she appears to be brought up.
8. The learned counsel for the petitioner reiterated the averments made in the petition, which have already been reflected hereinabove. In support of this petition, he has relied on Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCM R 1891; Muhammad Khalil-urRehman v. Mst. Shabana Rahman and another PLD 1995 SC 633; Ahmad Sami and others v. Saadia Ahmad and another 1996 SCM R 268; Muhammad Javed Akhtar v. Huma Naz and another 2000 SCM R 1410; Mst. Samina v. Ashfaque Hussain and another 2000 M LD 351 and Mussarat Shaheen v. Station House Officer and another 2002 YLR 3751.
9. On the other hand, the learned counsel for respondent No.1 submitted that the minor had never been removed from her ordinary place of residence, therefore, the basic ingredient of section 491(b), Cr.P.C. Was not attracted; that respondent No.1 was the natural guardian of the minor and as such his custody of the minor could not be termed as illegal or improper; that the petitioner does not have a permanent abode in Pakistan; that her whole family being in United States of America there was every likelihood of the minor's removal from the jurisdiction of this Court; that the petition is in fact aimed at obtaining the custody of the minor; that there being no emergent circumstances, the proper forum for obtaining the custody i.e. The Guardian Court could not be bypassed. In support of his contentions, he has placed reliance on Azra Bibi v. M. Rafiq 1994 PCr.LJ 2570; Captain S.M. Aslam v. Mst. Rubi Akhtar 1996 CLC 1; Mst. Hamida Bibi v. Station House Officer and others 1998 PCr.LJ 140 and Kaniz Sughra v. Lt. Col. Ghulam Mustafa and others 1999 YLR 1402.
10. I have carefully considered the arguments addressed by both the learned counsel. The facts and circumstances of the case indicate that the petition is in fact an attempt to obtain the custody of the minor. The learned counsel for the petitioner has not been able to controvert that the minor has been living with the father (respondent No.1) ever since her birth as such she-has not been removed from her ordinary place of residence. Insofar as the fears of the petitioner qua the health of the minor are concerned, the same appear to be quite unfounded, as the minor who has been appearing in the Court has been found to be absolutely hale and hearty and quite comfortable in her father's company. She has been admitted in Lahore Pre School, which is supposed to be one of the most expensive private Institutions in Lahore. Her tuition fee is stated to be around Rs.6,000 per month. Many claims and counter' claims have been made by each of the parties with regard to their suitability to retain the custody of the minor. The affluence, social status, educational background and the emotional suitability of the parties are matters, which essentially are to be decided by the Guardian Court by recording evidence if called upon to do so. In coming to the conclusion that the dispute between the parties does not fall within the realm of section 491, Cr.P.C., I am fortified by the observations of the Honourable apex Court in the case of Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCM R 1480: In the said case, the Honourable apex Court referred with approval its own view in the case of Mst. Aisha Bibi 1981 SCM R 301 that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcible detention arises, such was essentially a matter for Guardian Judge to resolve and no justification is made out in such a case for issuing a direction in the nature of a writ of habeas corpus.
11. In view of what has been discussed above, there is no merit in this petition, B which is accordingly dismissed.
12. Before parting with this order, I would like to add that the observations recorded hereinabove are for the limited purpose of disposal of this habeas corpus petition and are not meant to influence the proceedings before the Guardian Court, if any.