MIAN CASE C.M. No,516-M of 2013 ' MAMOON RASHID SHEIKH, J.---This order is in continuation of the orders dated 22-2-2013, 25-2- 2013, 4-3-2013 and 7-3-2013.
2. The brief facts as given in petition are to the effect that the Nikah ceremony of the petitioner and respondent No,1 was performer on 7-4-2007 and Rukhsati took place on 24-11-2007. The petitioner and respondent No,1 have two children; a girl named Erina Omer aged around 5-years and a boy named Shahvez Omer aged around two years (hereinafter referred to as "the minors"). The relationship between the parties was not a happy one ultimately resulting in respondent No,1 driving the petitioner and the minors out of the marital home on 18-1-2013. Efforts were made for reconciliation with the result that the petitioner and the minors returned to the marital home, however, on 1-2-2013 respondent No,1 with the aid of respondents Nos.2 and 3 who happen to be the parents-in-law of the petitioner again turned the petitioner out of the marital home and at the same time refused to hand over the custody of the minors to the petitioner. Feeling aggrieved the petitioner filed a petition under section 491 of the Cr.P.C. For recovery/ production of the minors before the learned District and Sessions Judge,- Lahore, which petition was dismissed by the learned Addl. Sessions Judge, Lahore on 8-2-2013, inter alia, for the reasons that the minors have been taken to Karachi, therefore, they have been removed from the jurisdiction of the Court, moreover, the matter is sub-judice before the learned Guardian Judge, Lahore, before whom a petition under section 25 of the Guardian and Wards Act, 1890, has been filed by respondent No, 1.
Hence the instant petition.
3. At the outset Dr. Abdul Basit, Advocate, the learned counsel for respondents Nos.1 to 3 raised preliminary objections regarding the maintainability of the petition by, inter alia, submitting that the petition is not maintainable as the order dated 8-2-2013 passed by the learned Addl. Sessions Judge, Lahore, exists whereby the petitioner's earlier petition under section 491 of the Cr.P.C. Was dismissed. The matter is sub-judice before the Court of the learned Guardian Judge, Lahore, who is the best judge to determine the welfare of the minors. Any order, therefore, passed by this Court would cut through the Guardian Court's order thus prejudicing the case of respondents Nos.1 to 3.
Even otherwise in presence of a guardianship petition a habeas corpus petition is not competent. If at all the petitioner has any remedy it lies in the petitioner filing a petition under Article 199, of the Constitution of the Islamic Republic of Pakistan, 1973. A second petition under section 491 of the Cr.P.C. Before this Court does not lie.
4. On merits the learned counsel submitted that the petitioner by her conduct has given up her right to the custody of the minors inasmuch as the petitioner abandoned the minors. The petitioner is more interested in her social life than the welfare of the minors, therefore, the petitioner cannot be given the custody of the minors. Further submitted that the petitioner preferred to attend a New Year party rather than look after the minors. Similarly, she went on a world tour by leaving the minors behind. Contended that there is no element of illegality of respondent No,1 's custody of the minors as respondent No,1 is the father and natural guardian of the minors. Respondent No,1, therefore, has a prior right to the custody of the minors. In any event as the matter is subjudice before the learned Guardian Judge, Lahore, this Court should refrain from passing any orders regarding the custody of the minors.
5. Ms. Asma Jahangir, Advocate, the learned counsel for the petitioner submitted that the allegations in respect of the character of the petitioner are baseless and false. The petitioner went on the world tour along with respondent No, 1 . The petitioner never abandoned the minors. The petitioner in fact was thrown out of the marital home by respondent No,1 time and again but the petitioner with a view to salvaging her marriage for the sake of the minors always made efforts to reconcile with respondent No, 1 . But her efforts have been in vain. Relies on the judgments reported as Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891), Ahmed Sami and 2 others v.
Saadia Ahmed and another (1996 SCMR 268), Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others (1997 SCMR 1480), Zubaida Shahzadi v. Muhammad Aslam and another (2007 MLD 512), Nitasha Rashid v. Rashid Zar and 4 others (PLD 2010 Karachi 119), Mst. Khalida Parveen v. Muhammad Sultan Mahmood and another (PLD 2004 SC 1), Mst. Azra Bhatti v. S.H.O., Police Station Hydri and 3 others (PLD 2009 Karachi 325), Mst. Haleema Bibi v. Bashir Ahmad and 2 others (2000 PCr.LJ 1685) and Mst. Farzana v. Syed Muhammad Afzal and another (1991 PCr.LJ 758) to contend that a second petition under section 491 of the Cr.P.C. Is competent before this Court, therefore, there was no need for the petitioner to file a petition under Article 199, of the Constitution.
Further submitted that this Court is vested with parental jurisdiction that can and should be exercised for the welfare of the minors. Further contended that the filing of a guardianship petition does not debar the petitioner from approaching this Court under section 491 of the Cr.P.C.
6. The learned counsel for the petitioner further contended that the petitioner being the mother of the minors has a preferential right to their custody as the minors are of tender age. The custody of the minors with respondent No,1 is illegal. Assuming without conceding that respondent No, l's custody of the minors is not illegal even then in any event respondent No, l's custody of the minors can at best be termed as irregular.
7. During the course of arguments the learned counsel for respondents Nos.1 to 3 referred to Criminal Miscellaneous No,516-M of 2013 to contend that respondent No,1 is willing to allow the petitioner to live with the minors in respondent No, l's house without any let or hindrance or interference by respondents Nos.1 to 3. The petitioner would be free to come and go and to reside with the minors. Respondent No,1 does not want the minors to be deprived of their mother's company.
8. The learned counsel for the petitioner filed a reply to Criminal Miscellaneous No,516-M of 2013 and submitted, under instructions, that the petitioner is not willing to take up the offer of respondent No,1 and would like that the petition be decided on merits.
9. In view of the above Criminal Miscellaneous No,516-M of 2013 has become infructuous.And is disposed of accordingly.
10. Before proceeding in the matter the parties were given an opportunity to explore the possibility of an out of Court settlement, however, no amicable settlement could be arrived at.
11. I have considered the arguments of the learned counsel for the parties and have also gone through the record.
12. The preponderance of the judgments quoted at the bar by the learned counsel for the petitioner are to effect that the jurisdiction of Courts under the Guardians and Wards Act, 1890, in respect of the custody of minors and for recovery/production of minors under section 491 of the Cr.P.C. Are entirely different. There is no question of one excluding the other, overlapping the other or destroying the other and there is no repugnancy between the said two' provisions, moreover, this Court as an interim measure pending final decision by the Guardian Court can pass an appropriate order where it finds that the interest and welfare of the minor demands that he/she be committed immediately to the custody of the person who was lawfully holding his/her custody before being deprived of the same. Reference is made to the judgments of the Hon'ble Supreme Court reported as Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891), Ahmed Sami and 2 others v. Saadia Ahmed and another (1996 SCMR 268) and Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others (1997 SCMR 1480).
13. In view of the above stated position of the law I hold the petition to be maintainable. The preliminary objections raised by the learned counsel for respondents Nos.1 to 3 are, therefore, repelled.
14 It is an admitted position that the younger of the two minors is aged around two years and the elder minor is aged 5-years. The convergence of views between the parties unfortunately ends there. There is an allegation on the part of the petitioner that she was thrown out of the marital home and at that time respondents Nos.1 to 3 forcibly retained the custody of the minors, whereas on the other hand it is contended by respondents Nos.1 to 3 that the petitioner had abandoned the minors. It, therefore, cannot be established without recording of evidence as to when and under what circumstances the minors were snatched from the petitioner, indeed, if at all. This Court, however, in the exercise of its jurisdiction under section 491 of the Cr.P.C. Does not normally record evidence to determine disputed questions of fact as the procedure adopted in such like cases is summary in nature. In such like circumstances, however, this Court whilst keeping the welfare of the child as also the attending circumstances in mind is empowered to pass appropriate orders to ensure that the rights conferred upon the child are fully protected in a suitable manner in the exercise of its inherent jurisdiction. This is especially so where the minors are of tender age as in the instant case. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court cited by the learned counsel for the petitioner and reported as Mst. Khalida Parveen v. Muhammad Sultan Mahmood and another (PLD 2004 Supreme Court 1) wherein it has been, inter alia, held that even in cases where it is found that the petition under section 491, Cr.P.C. Is not competent as there is no element of illegal custody by the father of his own child, but in the welfare of the child as well as to ensure that the rights conferred upon the child are fully protected in a suitable manner, this Court can pass appropriate orders in exercise of its inherent jurisdiction.
15. Under the circumstances, this petition is accepted and it is directed that by way of an interim measure the custody of the minors be handed over by respondents Nos.1 to 3 to the petitioner forthwith with a further direction to the learned Guardian Judge, Lahore, to decide the matter pending before him expeditiously, purely on merits without being influenced by any observation having been made in this order.
16. This order shall inure till the learned Guardian Judge, Lahore, passes an order regarding the interim custody of the minors. Till such time respondent No, 1 shall have the right to visit the minors and to this end, in view of the fact that the elder minor is a school going child, it is ordered that respondent No, 1 shall collect the minors from the petitioner's residence at 10-00 a.m. On every Sunday and return the minors to the petitioner's custody at 6-00 p.m. On the same day.
17. It is further directed that the minors shall not be removed from the jurisdiction of the learned Guardian Judge, Lahore, by either party without an express order of the learned Guardian Judge, Lahore, granting permission in this behalf.
18. The order whereby it was directed that the names of the minors be placed on the Exit Control List is hereby recalled.