MAMOON RASHJD SHEIKH, J. ---- With the consent of the parties this petition is being treated as a Pacca matter and shall be decided on the basis of the available record.
2. Brief facts giving rise to this petition for issuance of a Writ for habeas corpus are that the petitioner was married to respondent No. 2 on 6.7.2001. Out of this wedlock five children have been born to them. The parties are even otherwise related to each other in that they are first cousins, the petitioner's father being the maternal uncle of respondent No. 2 whereas respondent No. 2's mother (respondent No. 3 herein) being the paternal aunt of the petitioner.
3. Both the petitioner and respondent No. 2 are highly qualified and work in the field of education.
The marital relations between the parties have, however, been rocky from day one with frequent periods of estrangement followed by periods of reconciliation.
4. It, is the case of the petitioner that when the petitioner was pregnant with the couple's fifth child, she was yet again turned out by respondent No. 2 from the matrimonial home. Respondent No. 2 allowed two (2) out of the couples' then four (4) children to accompany the petitioner, he, however: forcibly retained custody of the other two (2) children of the parties namely Noor Ayesha Khan, a girl now aged about 7-1/2 years and Saad Bib VVaqas, a by now aged about 3-1/2 years i.e. The alleged detinues. The petitioner was, therefore, forced to return to her parents' home which is situated in District Haripur from the 'matrimonial home situated in Changa Manga, Tehsil Chunian District Kasur where respondents Nos. 2 and 3 are resident although they also hail from District Haripur. Respondent No. 3 is stated to be running a private school at Changa Manga. Respondent No. 2 is part of the administration whereas the petitioner from time to time had taught at the school.
5. Subsequent to the above incident the petitioner's father tried to mediate in the matter but without success. Consequently, the petitioner was constrained to move the Family Court, Haripur.
During pendency of the said litigation the elders of the family patched the matter up between the parties and through an agreement dated 20.6.2010 the custody of the alleged, detinues was handed over to the petitioner by respondent No. 2. (A copy of the said agreement has been presented by the learned counsel for the petitioner during the course of arguments and has been placed on the record). The petitioner, however, had to travel to Lahore on 4.7.2010 in connection with some personal matters and around that time respondent No. 2 forcibly snatched the alleged detinues from the petitioner and has kept them in his and respondent No. 3's illegal, improper and unlawful custody. As a consequence the petitioner has filed the instant petition.
6. On 9.7.2010 a Bailiff was deputed by this Court to recover the alleged detinues and produce them before this Court on 12.7.2010. The alleged detinues were produced and at the very outset the learned counsel for respondents Nos. 2 and 3 called into question the maintainability of the petition on grounds of concealment of material facts. It was contended that the matter of custody of the elder four children of the parties (including the alleged detinues) is already sub judice before the learned Judge Family Court, Haripur which learned Court through order dated 25.9.2009 has already awarded the interim custody of the alleged detinues to respondent No. 2 whereas the other two children have been ordered to remain with the petitioner. It was further submitted that the trial of the case before the learned Judge Family Court, Haripur is likely to be concluded soon.
7. The learned counsel for the petitioner on being confronted with the above did not deny the factum of pendency of the case before the learned Judge Family , Court, Haripur: He, however, denied concealment of facts by referring to para 3 of the petition wherein reference has been made to pendency.Of the said case.
8. The parties, however, through mutual agreement sought adjournments to arrive at an out of Court settlement and pending the same it was further agreed that the alleged detinues may be handed over to the petitioner as an interim measure. Today the learned counsel have informed that the matter could not be settled between the parties, hence, the petition be heard and decided on merits.
9. Arguments heard. Record perused.
10. The learned counsel for the petitioner whilst reiterating the facts as narrated hereinabove submits that there is no concealment of facts on the part of the petitioner. Disclosure has been made in para 3 of the petition and in support of the petitioner's claim he submits that through the agreement dated 20.6.2010 respondent No. 2 had handed over the alleged detinues to the .Petitioner. Respondent No. 2, however, by reneging on the same has forcibly taken the alleged detinues away from the petitioner. Further contends that under the law notwithstanding the pendency of the proceedings before the learned Judge Family Court, Haripur, the petitioner can maintain this petition. He has placed reliance on the judgments reported as Mst. Farzaha v. Syed Muhammad Afzal and another (1991 P.Cr.L.J. 738), Abdul Rehman's Khakwani and another v. Abdul Majid Khakwani and 2 others (1997 SCM R 1480) and Mst. Ghulam Fatima v. The State and 5 others (1997 PSC (Crl.) S.C.). Moreover, prays for indulgence of this Court for considering the extenuating circumstances obtaining in the case and further prays that this Court should exercise its parental jurisdiction and decide the petition on the basis of the welfare of the alleged detinues who are minors rather than basing the decision on technicalities. It is further contended that the question of custody before the learned Judge Family Court, Haripur, only relates to the elder four children of the parties. Their youngest child, is of suckling age and has been with the petitioner since birth, hence, in view of the changed circumstances and also the facts that the petitioner has obtained a visa for emigrating to the United States of. America and is contemplating a second marriage it has become imperative that this petition be accepted and it be ordered that the custody of the alleged detinues be handed over to the petitioner.
11. The learned.Counsel for respondent No. 2 has controverted the stance of the petitioner. It is contended that the alleged agreement dated 20.6.2010 did not take place. He reiterates his objection regarding maintainability of the petition as well as his plea that since the matter is already sub judice before the learned Judge Family Court, Haripur, no order is called for in this petition. Prays that the petition be dismissed. Relies on the judgment reported as Mst. Maria Khan v.
Muhammad Zubair Khan (1993 P.Cr.L.J. 1097).
12. An opportunity has also been given to one of the alleged detinues namely Noor Ayesha Khan to express her views before the Court. She is an intelligent child aged about 7-1/2 years and it is evident from her demeanor and statement before the Court that she is highly stressed and depressed because of the dispute between her parents and the acrimony generated by it.
13. Normally in custody disputes of children the Guardian Court is the final arbiter where the paramount consideration is the welfare of the minors. In exceptional cases , however, pending adjudication of the custody dispute before the Guardian Court this Court if it finds that the interest and welfare of the minor demanded that the minor be committed immediately to the custody of, the person who was lawfully holding the custody before being deprived of the same then this Court in its extra-ordinary Constitutional jurisdiction can as an interim measure pass appropriate orders pending final decision by the Guardian Court. Reliance in this regard is placed on Abdul Rehman's Khakwani and another v. Abdul Majid Khakwani and 2 others (1997 SCM R 1480) and Mst. Khalid Parveen v. Muhammad Sultan Mehmood and another (PLD 2004 S.C. 1).
14. 'The facts and circumstances of the case to the mind of this Court are exceptional in nature.
There are serious allegations regarding the conduct of both parties, however, in the case of Mst.
Maria Khan (supra) cited by the learned counsel for respondent No. 2 it is observed that if the minors are satisfied and are not agitated they may be ordered to remain in the custody of the respondent. In the instant case, as has been observed above, one of the alleged detinues has been badly affected by the ongoing acrimonious tussle between her parents. (Her interim custody was handed over to the petitioner plongwith that of the other detenue through order dated 12.7.2010 with the consent of the parties). She nevertheless appears to be happy in the custody of her mother (the petitioner). This Court has been informed that the trial before the learned Judge Family Court, Haripur, has neared its completion and the- final order is likely to be passed either immediately before or soon after the summer vacation.
15. Under the circumstances by accepting this petition I direct that the custody of the alleged detinues be handed over to the petitioner. This order shall, however, only inure till the final order passed by the-learned Judge Family Court, Haripur. .