' SYED HASAN AZHAR RIZVI, J.---By this order I intend to dispose of the application under section 491 r/w section 561-A, Cr.P.C. Filed by petitioner Ali Hayat with the following prayers:-- "(i) Direct the respondents to deliver up the minor children Emaan Hayat and Salaar Hayat before this Hon'ble Court.
(ii) Direct the respondents to deposit their and the minor children's passports with the Nazir of this Hon'ble Court together with appropriate sureties to guard against the risk of flight.
(iii) Deliver the custody of the minor children to the petitioner pending a final determination by the competent Guardian Judge.
(iv) Pass such other or additional order as this Hon'ble Court may deem just and appropriate and in keeping with the best interest and welfare of the minor children.
(v) Grant costs of the proceedings.",
2. Brief facts of the case are that petitioner married with respondent No.1 on 22-7-2001 and out of this wedlock two children namely Emaan Hayat aged about 7 years and Salaar Hayat aged about 4 years were born. Later on, due to differences and disputes the respondent No.1 pronounced divorce upon the petitioner while exercising her right to divorce delegated to her through Clause 18 of the Nikahnama which became effective on 6-8-2011. Thereafter, both the petitioner and respondent No.1 in the best interest of the children and to keep them harmless and put Emaan and Salaar's needs ahead of their own, entered into a Joint Parenting Agreement dated 26-1-2012, which is enclosed as Annexure B/2 at Page No.17 of the Court file.
3. No counter-affidavit has been filed by the respondents No.1 and 2 to deny the contents of the instant application.
4. I have heard Mr. Salahuddin Ahmed, learned counsel for the applicant, Mr. Shaikh Jawaid Mir, learned counsel for the respondents Nos. 1 and 2 and perused the material available on record.
5. Mr. Salahuddin Ahmed, learned counsel for the applicant has contended that applicant is the real father of Emaan and Salaar and he is regularly paying their maintenance as mutually agreed in the parenting agreement. He contended that the respondent No.1 in violation of the sub-clause (5.1.1) remove the minors without prior consultation with the petitioner thereby deprived the petitioner from his visitation rights. He made reference to para (7) of the Preamble, Sub-Clauses (2.1.1), (5.1.1) and (9.1.1) of the Parenting Agreement, which read as under:-- "(7) Whereas for purposes of this Joint Parenting Agreement, the term "Joint Custody" or "Joint parenting" shall mean each party shall confer with each other and consider the other's opinion on all important matters pertaining to Emaan and Salaar's health, welfare, education, religious training, extracurricular activities and upbringing.
(2.1.1) They want Emaan and Salaar to know that their parents will use their best efforts to jointly care for them and that they will have full physical access to both parents.
(5.1.1) The primary physical residence of Emaan and Salaar shall be with the party to the First Part, at House No.9-A/1, Phase-II, DHA extension, Karachi. No change in permanent residence can occur without prior consultation between both parties and will only be possible if both parties reach to an amicable decision.
(9.1.1) In case of either party getting married again, the terms of this Agreement shall be renegotiated."
6. Learned counsel further contended that there is no denial of the payment towards monthly expenses and the petitioner has paid monthly maintenance upto October, 2012. He drew my attention to Page 137 of the file, which is a. Revised statement in monthly expenses and according to the said revised expenses the petitioner bear Rs.110,000 towards maintenance of his children. He submitted that on 1-10-2012 children informed the petitioner about shifting to a new house and when the petitioner asked the respondent No.1 where the children were being moved she refused to provide answer and abruptly stopped the children from meeting the petitioner. In this regard he also made reference to the various e- mails sent by the petitioner to the respondent No.1, particularly the e-mail dated October 29, 2012, which is reproduced as under:- "From Hayat Ali Sent Monday October 29, 2012 8-42 P.m.
' To Kholod Shafi Subject RE: Kids - Revised Expenses Kholod ' I have been trying to contact you and Emaan and Salaar since before the Eid holidays. There is no sign of you or the kids at the house and I'm informed that the house has been stripped bare of all my furniture and goods.
' Despite my frantic e-mails, calls and text messages, there is absolutely no response from your end. If I don't hear from you immediately, I shall approach the concerned authorities for the location and recovery of:
(i) My missing children
(ii) My missing goods and furniture"
' Learned counsel submitted that despite petitioner's best efforts no response was received from respondent side and petitioner has no option except to approach the Police to ascertain the whereabouts of his children and lodged F.I.R. No.386 of 2012 in relation to the missing goods and furniture. In support of his submission, he placed reliance on the cases of MST. KHALIDA PERVEEN v.
MUHAMMAD SULTAN MEHMOOD AND ANOTHER (PLD 2004 SC 1) and MUHAMMAD SAVED UMRAO V.
MISS UZMA WAHID (1988 SCMR 1891).
7. Mr. Shaikh Jawaid Mir counsel for the respondents Nos.1 and 2 at the very outset contended that the present application is incompetent as section 491, Cr.P.C. Has no applicability to the present case as the children were allowed to remain in the custody of her mother in pursuance of Parenting Agreement arrived at between the petitioner and respondent No.
1. He also contended that according to Sub-Clause (11.1.2) of the Parenting Agreement, disputes shall firstly refer to mediator and parties to avoid the expense and acrimony of formal Court proceedings, but the petitioner himself violated the terms of Parenting Agreement by approaching the Court before submitting his grievance to mediator. He further submitted that no prayer regarding visitation right has been made in the prayer clause. Learned counsel in support of his submission also placed reliance on the case of Mst. Khalida Parveen referred by Mr. Salahuddin Ahmed, advocate for the petitioner.
8. In rebuttal, learned counsel for the petitioner submitted that petitioner will not press the prayer clause (iii) if the respondents allow the meeting and visitation rights of the petitioner to his children.
He also urged that if the. Respondent No.1 denies the father access to the children, such must be considered not only to have removed the children from the constructive custody of the father but also to have done something which is against the welfare of the children. In support of his submission, he placed reliance on the case of MST. CHIRAGH BIBI v. KHADIM HUSSAIN (PLD 1967 Lahore 382).
9. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case-law cited at the bar.
10. In case of custody of the minors two remedies were; one under section 25 of Guardians and Wards Act, 1890 and other under section 491, Cr.P.C and both remedies were entirely different. It is well established principle that in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstance of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petition under section 491, Cr.P.C. Is not found to be competent when there is no element of illegal custody by the mother of her own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the Courts could also pass appropriate order in exercise of its inherent jurisdiction.
11. The parties to these proceedings are not denied the execution of Parenting Agreement. It is also an admitted position that both petitioner and respondent No.1 contracted second marriage. It is also an admitted fact that the custody of the children is with the respondent No,
1. In this view of the matter, I deem it appropriate to dispose of this Criminal Miscellaneous Application with the following observations:--
(1) The petitioner and respondent No.1 would follow the Parenting Agreement dated 26-1-2011. Per Clause 9.1.1 they may sit together to renegotiate the Agreement keeping in view the best interest and welfare of their children. Such exercise will be completed within a period of thirty (30) days from today.
(2) As an interim measures the respondents allowed the petitioner to meet his children three times in a week for two hours each. The meeting will be held at House No.9-A/1, Phase-II, DHA Extension, Karachi and/or at the place of his choice. The pick and drop is the responsibility of the petitioner.
This interim arrangement is only upto 30 days as mentioned in clause (1) referred to above.
(3) The parties to the present petition are directed not to remove the custody of the minors from Karachi without any order of competent Court of law.
(4) The petitioner is directed to continue deposit the amount as per revised monthly expenses.
(5) In case of failure to reach to an amicable settlement outside the court within the time stipulated in clause-1 above, parties shall be at liberty to approach the Guardian Judge for redressal of their grievance, if any.