FAZAL-E-MIRAN CHAUHAN, J.--- By filing this criminal miscellaneous, it is prayed that Nalain Muhammad, minor son of the petitioner aged 5 years illegally removed by respondent No,2, ex- husband of the petitioner, be recovered and his custody be handed over to the petitioner.
2. Brief facts of the case are that; the petitioner Shah Bano and respondent No,2 Muhammad Ayub got married according to Muslim rites and Nikah was solemnized on 11-7-1999 and a son namely Nalain Muhammad was born from the wedlock. The relations between the parties became strained and the petitioner was divorced by respondent No,2 on 13-10-2004. On 10-2-2005, the petitioner moved an application under section 491, Cr.P.C. For recovery of minor Nalain Muhammad, alleging therein that the relations between the spouses became strained and the petitioner shifted to her parent's house and on 20-1-2005, the minor child was removed illegally by respondent No,2. The learned District Judge, Faisalabad, by its order, dated 2-3-2005, dismissed the criminal miscellaneous by observing that the minor was not removed forcibly, the dispute is that of custody of the minor and directed the petitioner to file an application under sections 12 and 25 of Guardians and Wards Act before the Guardian Judge, Faisalabad. It also transpired from the order of learned District Judge that the application under section 25 was already pending before the Senior Civil Judge, Faisalabad. This order of the learned District Judge was not challenged by the petitioner. On 23-2-2005, she moved an application under section 12 for interim custody of the minor. The Guardian Judge, by its order, dated 9-3-2005, directed respondent No,2 to hand over the custody of the minor to Shah Bano till 11-3-2005. This order was challenged by respondent No,2 by filing an appeal, which was heard and accepted by learned Additional District Judge, Faisalabad by its order, dated 25-3-2005, setting the order, dated 9-3-2005 of Guardian Judge, Faisalabad. This order of learned Additional District Judge, Faisalabad was challenged by filing Writ Petition No,6278 of 2005. The learned Single Judge in Chambers accepted the writ petition and set aside the order, dated 25-3-2005 holding that the appeal would be deemed to be pending and parties were directed to appear before the learned lower Appellate Court who shall decide the question of interim custody of the minor keeping in view the welfare of the minor. Thereafter, the petitioner contracted marriage with Gulzar Bari and did not appear before the learned Additional District Judge, Faisalabad, after remand. She did not appear before the Guardian Judge, Faisalabad in the application under sections 25 and 12 and the same were dismissed in default on 16-12-2006.
Thereafter, on 21-5-2007, the petitioner moved second application under section 25 of Guardians and Wards Act for custody of the minor and also prayed for interim custody of the minor. Reply to this application was filed by respondent No,2. He raised as many as thirteen preliminary objections regarding maintainability of the petitions, concealment of previous litigation at Faisalabad and contracting of two marriages during this period respondent No,2 also filed an application under sections 25 and 12 of Guardians and Wards Act in the Court of Guardian Judge, Faisalabad. Both the petitions are pending disposal.
3. It is argued by learned counsel for the petitioner that; the present petition is maintainable despite pendency of application under section 25 of Guardians and Wards Act. It is a case of illegal removal of the minor by respondent No,2 and in this view of the matter, this Court has the jurisdiction to pass an order and direct respondent No,2 to hand over the custody of the minor to the petitioner, as she is entitled to the custody of the minor during the pendency of application under section 25 of Guardians and Wards Act. Further argues that; it is in the welfare of the minor that his interim custody be given to the petitioner. It is denied that the petitioner contracted fourth marriage with one Mazhar, after getting divorce from Gulzar Bari. Reliance has been placed on the case-law reported as Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCM R 1891 and Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCM R 1480.
4. Conversely, learned counsel for respondent No,2 opposed this petition contending that; it is not a case of removal of the minor from the custody of the petitioner. The petitioner left the minor with respondent No,2 and went to the house of her parents way back in September, 2004. The petitioner was divorced by respondent No,2 on 13-10-2004 and thereafter, she moved an application under section 491, Cr.P.C. On 20-2-2005, which was dismissed by the learned Additional District Judge, Faisalabad on 2-3-2005 and this order was not challenged by her and the finding of learned Additional District Judge that, it is not a case of snatching of the minor attains finality. Thereafter, the petitioner moved petition under sections 25 and 12 of Guardians and Wards Act on 23-2-2005.
Further states that; the petitioner had failed to establish that the minor was in his custody and was illegally removed by respondent No,2. His application under sections 25 and 12 was dismissed for non-prosecution as she was not interested to prosecute the same, because she lost her interest in the minor after contracting third marriage with Gulzar Bari. The petitioner was a divorcee before she contracted marriage with respondent No,2. After she was divorced, she contracted third marriage with Gulzar Bari and thereafter with one Mazhar. This conduct of the petitioner shows that during 2005-2006, she enjoyed her marriages with Gulzar Bari and Mazhar and now after getting divorce from the two later husbands, she had filed second application at Tandlianwala under sections 25 and 12. All the facts and previous litigation has been deliberately concealed by the petitioner to misguide this Honourable Court. Finally argues that; the case-law cited by learned counsel for the petitioner has no bearing on this case. Facts of those cases are altogether different.
The petitioner, by her own conduct, disentitled herself of the relief, claimed in the case.
5. I have heard learned counsel for the parties and perused the record. Since, there is protracted litigation between the parties at different forums for getting the custody of the minor Nalain Muhammad. The relations, had never been congenial between the spouses and the marriage tie could not succeeded and separation was made between the parties; hence, keeping in view the gravity of factual controversy and welfare of the minor, the Courts always opt to exercise their parental jurisdiction in order to facilitate the welfare of the minor. Allegedly, on 20-1-2005, the minor was illegally removed by respondent No,2, whereas, the petitioner filed criminal miscellaneous for the recovery of the said minor before the District Judge, Faisalabad, who vide order, dated 2-3-2005. Dismissed the petitioners' application with the finding that, the minor was not removed forcibly; so far the matter related to the custody of the minor and the petitioner was directed to move application under sections 12 and 25 of Guardians and Wards Act before the concerned Guardian Judge.
6. From the finding of the learned District Judge, Faisalabad, it came to knowledge that, the application under section 25 of Guardians and Wards Act was already pending before the Senior Civil Judge, Faisalabad. This fact was concealed by the petitioner at that time and adopted a novel way to get the custody of the said minor and thereafter the petitioner did not challenge the order passed by the learned District Judge, which attained finality.
7. From the controversy of the parties, one thing is apparent that the parties had remained in litigation in order to let down each other and none of them had taken care for the minor. As far as conduct of the petitioner, she left the minor with respondent No,2 and went back to her parents' house and subsequently, on 13-10-2004, respondent No,2 divorced the petitioner. Consequently, the petitioner instead of pursuing the matter regarding custody of the minor, she contracted third marriage with one Gulzar Bari and did not pursue her case before Guardian Judge, Faisalabad, which application was dismissed in default on 16-12-2006. After getting divorce, she as alleged by the respondent, started living with one Mazhar. This all shows that petitioner was never interested in the custody of the minor seriously. Now her second application under section 25 and section 12 are pending before Guardian Judge, Tandlianwala, Faisalabad, who shall hear and decide the same in accordance with law.
8. While hearing both the learned counsel for the parties, the petitioner was provided opportunity to meet the minor namely Nalain Muhammad and the said minor seemed to be quite alien towards his mother i.e. Petitioner and emotional attachment presumed to be leaned towards his father respondent No,2 due to the fact that since the divorce, the mother-petitioner did not attend to the minor and had been engaged in entering into marriage with other persons and as consequence of such. The law cited by the learned counsel for the petitioner does not apply to the facts of this case.
There is no cavil with the proposition that petition under section 491, Cr.P.C. Can be moved even during pendency of application under sections 25 and 12 of the Guardians and Wards Act, when there is apprehension of removal of ward from the territorial jurisdiction of the Court or the mother who is contesting the case with zeal and vigour for regaining of the custody especially when the minor is removed from her custody illegally by the father. In this case, as held by the learned District Judge, Faisalabad way back on 2-3-2005, that it is not a case of forcible illegal removal.
The petitioner never challenged that order. Rather she after remand disappeared and did not appear before the Guardian Judge, Faisalabad. As discussed in the foregoing paras., the petitioner by her own conduct established that she is not entitled to any relief under section 491, Cr.P.C.
9. In such circumstances, it is the discretion of the Court to exercise its parental jurisdiction and keeping in view the protracted litigation between the parties, the paramount consideration would be the welfare of the minor, hence, the minor presumed to be well acquaintance with his father- respondent No,2, who is also his natural guardian. The petitioner, if so advised may approach the appropriate forum for the custody of the minor. At this juncture, no such direction can be passed to declare the custody of the minor to be illegal, hence, this petition having no merit is hereby dismissed.