ALI BAQAR NAJAFI, J. --- Through this Constitutional petition the petitioner seeks setting aside of the impugned order dated 06.06.2013 and handing over of the custody of the minors to the petitioner with the further prayer to direct the Court concerned to initiate proceedings' under Section 195(b), Cr.P.C. Read with Section 476, Cr.P.C. Against respondent No. 1.
2. Brief facts giving rise to the filing of this petition are that the petitioner married to respondent No. 1/Azra Shaheen and from their wedlock three minors, namely, Farza Sarwar, Shehraz Sarwar and Sehar SanNar were born. However, the relationship between the spouses got strained and respondent No. 1 filed a petition under Section 491, Cr.P.C. For the recovery of the minors in which on 06.06.2013 the minors were recovered and handed-over to respondent No. 1. Hence this petition.
4. Learned counsel for the petitioner submits that the petitioner was condemned unheard; that respondent No. 1 has falsely made a statement where she incorrectly disclosed the ages of the minors i.e. Faraz Sarwar as 8 years, Shehraz Sarwar as 5 years and Sehar Sarwar as 4 years, whereas their ages are 13 years for Faraz Sarwar and not 8 years, 8 years for Shehraz Sarwar and not 5 years, 5 years for Sehar Sarwar and not 4 years and places reliance on their birth certificates; that the minors are studying in the School and getting their education and for the impugned order their education has been seriously affected. Hence prays for the handing over of the custody of the minors.
5. Conversely, learned counsel for respondent No. 1/Azra Shaheen submits that the minors are living with the mother; that the petitioner has got second marriage, whereafter she separated from him; that the best place of the minors is the lap of the mother and prays for the dismissal of this petition.
6. In rebuttal, learned counsel for the petitioner submits that as the petitioner has already filed a petition under Section 25 of the Guardians and Wards Act, 1890 direction be issued for its early disposal; that the petitioner has not contracted second marriage and the allegation is false.
7. I have heard the learned counsel for the parties and perused the available record.
8. The minors have been produced before this Court by respondent No. 1/Azhra Shaheen.
Apparently, they seem to be of tender ages and they are emotionally attached. With their mother.
Even otherwise, the matter of custody cannot be determined in the instant petition. If the petitioner has filed a guardian petition, the same will be decided in accordance with law. The minors apparently are not in illegal and improper custody as Respondent No. 1 being the mother of minors is a natural guardian.
9. In this view of the matter, no proceedings are required in this petition, which is hereby dismissed.
However, any observation made in this order will not prejudice any proceedings pending/filed before the concerned Guardian Court. .