Petitioner before me is a mother seeking recovery of her minor daughter Mst. Sana Fatima from the alleged improper or illegal custody of respondents No.4 to 8. Before approaching this Court through the constitutional petition in hand, she filed a petition under section 491 of the Code of Criminal Procedure, 1898 before the learned Additional Sessions Judge, Jhang who dismissed the same on 02.01.2020. In pursuance to a notice issued to respondent No.5, he has produced the minor .
2. Arguments heard. File perused.
3. Petitioner was divorced by responden t No.5 in the year 2015 when minor Mst. Sana Fatima was just a three months suckling baby . Having been divorced, the petitioner filed a suit for recovery of maintenance allowance of the minor against the said respondent which was decreed in her favour on 23.02.2017 but respondent No.5 avoided the process of law and instead of fulfilling his moral and legal responsibility of providing maintenance to the child, became fugitive from law and consequently warrants of arrest were issue d against the said respondent during execution proceedings of the decre e. Though the parties are having their different stance with regard to the manner of change of custody of the minor on 21.12.2019 yet there is no denial to the fact that prior to the said date minor Mst. Sana Fatima was not residing with her father , respondent No.5 and that she was not being maintained by him since 2015. The fact being furnished by learned counsel for respondent No.5 to the effect that Ghulam Shabbir , brother of petitioner with the consent of their mother himself handed over the custody of Mst. Sana Fatima to the respondent, even is taken as true, even then they cannot be deemed entitl ed to do so when mother of the minor , the petitioner is not willing to do so and she is desirous to continue the custody of the minor , her daughter .
Respondent No.5, no doubt, has the right to approach the learned court of competent jurisdiction for the custody of minor but not otherwise. In the light of mentioned supra, this petition is allowed and interim custody of Mst. Sana Fatima, the minor is handed over to the petitioner .
However , respondent No.5 may continue to seek permanent custody of the minor from the learned Guardian Court concerned, if so advised and if he does so, the learned court below shall proceed with and decide the matter on its own merits without being influenced by any of the observations given by this Court in this order which being tentative in nature are meant to deal with the petition in hand only .