' RAUF AHMAD SHEIKH, J.---Mahad Ahsan has been produced. The learned counsel for the petitioner has contended that under the agreement executed between the petitioner and respondent No,3, the minor was handed over to respondent. No,3 on 18-5-2012 but he did not return the minor on 20- 5-2012 as per terms of the agreement and promise so the minor is not in proper custody and petitioner being real mother has the right of "Hizanat" qua him.
2. The learned counsel for respondent No, 3 has contended that petitioner gave up her right regarding custody of the minor and that the respondent No, 3 has filed an application under section 25 of the Guardians and Wards Act 1890 and the learned Guardian Judge has directed that minor should not be removed/ snatched from the respondent No,3 illegally, forcibly and without due course of law.
3. The copy of the agreement deed shows that the minor was given in custody of the petitioner but respondent No, 3 was given right of visitation. He was supposed to take the minor from the residence of the petitioner at 6-00 p.m. On every 1st and 3rd Friday of the month and deliver him back at 6-00 p.m. On Sunday. The minor was admittedly given to respondent No,3 on Friday, the 18th of May, 2012 but he did not return him on 20-5-2012 as per promise. Instead of honouring his commitment, he moved an application under section 25 of .Guardians and Wards Act, 1890 on 21- 5-2012 and produced the minor before the learned Guardian Judge, who passed an order that the minor be not snatched illegally or per force. The learned counsel for respondent has contended that in view of the fact that the matter is pending before the Guardian Judge, the application under section 491, Cr.P.C. Is not maintainable. This argument is misconceived. In suitable cases, this Court can exercise the powers under section 491, Cr.P.C. Even during the pendency of the petition before the Guardian Judge. When the minor was living with the respondent No,3 at the relevant time, there was no need for him to file the petition under section 25 of Guardians and Wards Act, 1890. It is thus obvious that he did not approach 'the learned Guardian Court with clean hands. Instead of returning the minor as per his commitment, he opted to file the petition for custody of the minor although the minor was already with him at that time. The proceedings under section 491, Cr.P.C.
Cannot be terminated in view of the Order dated 21-5-2012 of the learned Guardian Judge. The petitioner being real mother of the minor has right of Hizanat qua him. The minor is about 5 years old and needs constant love, care and affection of the mother. The respondent had also agreed at the time of divorce that the minor would live with her. Hi these circumstances, the application are accepted and the minor is given in "Hizanat" of the petitioner. However, the parties will abide by the agreement regarding visitation rights of respondent No,3 unless altered by the learned Guardian Judge.