AALIA NEELUM, J.---The petitioner-Abid Hussain had filed a petition under Section 491 Cr.P.C for issuance of an appropriate order with direction in the nature of habeas corpus. The petitioner prayed for custody of his two minor daughters (1) namely Fatima Abid Hussain aged 13 years and (2) Saleema Abid Hussain having age of 11 years, according to him, are in illegal custody of the respondent No.1, because according to the parenting plan both parents i.e. the petitioner (the father) and respondent No.1 (the mother) would exercise joint parental authority over children and the parents would consult each other; when they plan any relocation of residence and custody of Khadija was granted to the father (the petitioner) and of Fatima and Saleema was granted to the respondent No.1 by a divorce decree dated 01.08.2013 passed by the Judge of the Family Court, Rotterdam, Netherland.
2. The facts leading to the instant petition are as follows:- "The respondent No.1 was married with the petitioner on 06.11.1995 in Sialkot, Pakistan. Thereafter the petitioner and respondent No.1 went to Netherland to settle down permanently. On 24.09.2001 and 02.10.2003, two female children were born to them in Rotterdam at Netherland. The respondent No.1-wife filed a divorce case in Rotterdam at Netherland against the petitioner and the Family Court of Rotterdam asked the parties to submit a parenting plan regarding custody of the minors and the schedule of meeting of the children with the parents. The parties managed to establish a parenting plan on 03.04.2013. The parenting plan was submitted by the respondent No.1 in the Family Court, Rotterdam signed by both the parties. From the bare reading of the parenting plan, it reveals that the parents were charged with the custody of the children; Fatima and Saleema have their main residence with the mother and were registered in the population register of the Municipality to address its stand and when a- proposed relocation, the parents will consult with each other. Thereafter, the Court on receiving parenting plan, the District Court, Rotterdam on 01.08.2013 hold that the petitioner and respondent No.1 are hereby divorced."
3. The divorce decree and parenting plan is legal, valid and binding on the parties. On or before 16.12.2013, the respondent No.1 secretly and without consent and/or knowledge of the petitioner, abducted/kidnapped the children and took them to Pakistan. The petitioner had no knowledge about this Thereafter, the petitioner approached the Dutch Central Authority (D.C.A) on 6th and 8th January, 2014 for legal help in relation to the abduction of his daughters namely Fatima and Saleema. The 'petitioner also filed complaint with the police regarding abduction of his daughters against respondent No.1 on 10.01.2014. On 10.03.2014, brother of the petitioner Abdul Ghaffar informed the officials of Embassy of Netherland at Islamabad qua the whereabouts of the petitioner's daughters. It is relevant to mention here that the respondent No. 1 was married with Majid Hussain (the real brother of the petitioner) on 28.12.2013.
4. The petitioner also filed another complaint with the police in Rotterdam, Netherland on 01.09.2014.
Thereafter, Interpol published yellow notice on the request of National Central Bureau of Netherland. The Rotterdam District Court has revised the order of Family Court dated 01.08.2013 and granted parental authority over Fatima and Saleema solely to the petitioner. The petitioner came to Lahore and filed instant habeas corpus petition with the following prayer: "that appropriate direction be issued to the respondent No.3 to locate, recover and produce the abducted children in the court from respondents Nos. 1 and 2. "further prayed that abducted children of the petitioner be produced in the court and handed over to the petitioner."
5. The learned counsel for the petitioner submits that respondent No.1 has illegally removed the children without consent and knowledge of the petitioner. In view of the judgment passed by the District Court At Rotterdam, Netherland both parents exercise joint parental authority and on proposed relocation, the parents will consult with each other. He also maintained that on the complaint of the petitioner, Interpol published yellow notice on the request of National Central Bureau (N.C.B) of Netherland. The learned counsel also submits that Rotterdam District Court has revised the order of Family Court dated 01.08.2013 on 12.03.2015 and granted parental authority over Fatima and Saleema to the petitioner.
6. The learned counsel for the respondent No.1 submits that the instant habeas petition was filed after approximately two years and this fact alone disentitles the petitioner from the relief under Section 491 of Cr.P.C. and prays for dismissal of the petition.
7. Heard. Record perused.
8. Admittedly the minors are residents of Netherland having nationality of Netherland. The respondent No.1 has not denied this fact. It is also admitted fact that on 31.05.2013, a parenting plan was submitted by the respondent No.1 in the Family Court of Rotterdam according to which, both parents would exercise joint parental authority over the children and parents would consult with each other when they plan relocation of residence of the minors. The learned counsel for the respondent No.1 is not in position to rebut the legal and factual aspect of the case as the respondent No.1 invoked the jurisdiction of the foreign court, the respondent No.1 did not press hard on the question of jurisdiction at the time of hearing. However, learned counsel for the respondent No.1 raised objection that instant petition was not maintainable as the same was filed with considerable delay and has no force as the petitioner soon after coming to know that his both daughters were abducted or removed from Netherland, he approached the Dutch Central Authority for legal help and also filed complaint with the police. It is also noted that criminal case was also registered against respondent No.1 at Police UNIT, ROTTERDAM on 10.01.2014. From the record, it is clear that the petitioner has made his best efforts to trace the whereabouts of his minor children.
9. I have also interviewed and talked to the children primarily, so that I may be able to ascertain the children's wishes objectively, without much influence or tutoring by the respondent No.l. Fatima and Saleema admitted that they sent several e.mails to their elder sister Khadija and also to Mr. Singh, a colleague of the petitioner's attorney. The children seem to be quite happy with the father. It seems, the children have been deprived of attention care, love and affection which they were legitimately entitled to. It is admitted fact that respondent No.1 (the mother) had secretly and without consent and knowledge of the petitioner took the children to Pakistan. In view of above, it is clear that the matter of custody has already been decided from the foreign courts where the respondent No.1 herself filed a petition for divorce and admittedly the petitioner and children are national of Netherland.
10. For what has been discussed above, this petition is accepted and custody of minors namely Fatima and Saleema is handed over to the petitioner.
11. However, I would like to make it clear that respondent No.1 must be given all freedom and opportunity of spending time with the children as and when she visits the children. The mother (respondent No.1) would be free to call her children telephonically as and when she feels like to them.