This order will dispose of Criminal Revisions Nos. 298 and 516 of 1970. These two petitions have arisen out of the following circumstances :-- The parties are Christian by faith. The parents of the peti tioner reside at Mangtanwala in Sheikhupura District and the parents of the respondent belong to Sahiwal District. The petitioner Z.
D. Yasman was married] to the respondent Mrs. Doris Z. D. Yasman and out of the wedlock there were two children. The eldest child Raja Tabassam, a boy was about two years old when differences arose between the parties. The respondent Mrs. Doris Z. D. Yasman filed a petition for divorce in the Court of the District Judge, Sahiwal on 18th of April 1968, on the allegations of cruelty and adultery. The petition remained uncontested and the District Judge passed a decree nisi on 26th of June 1968, which was confirmed by the High Court on 1st of April 1970, by order passed in Matrimonial Reference No. 22 of 1968. It appears from the submissions made at the bar that before the institution of the divorce proceedings Mrs. Yasman had also moved the Guardianship Court at Sahiwal for the custody of her son Raja Tabassam who at the relevant time was living with the parents of the petitioner at Mangtanwala in District Sheikhupura.
2. Mrs. Yasman is in Government service as a nursing sister. On 8th of February 1969, while she was working as a nursing sister in the Mayo Hospital, Lahore she filed an application under section 100 of the Criminal Procedure Code for the custody of Raja Tabassam apparently addressed to the Additional District Magistrate but actually entertained by Mr. S. A. Naqvi, Magistrate 1st Class, Lahore.
The learned Magistrate issued a search warrant under section 100, Cr. P. C, for the minor who was produced in Court on 14th of February 1969. Mr. Z. D. Yasman was not present on that day but his father, from whose custody the child was recovered, appeared. The learned Magistrate observed that the father of the child was serving in Mianwali District and that the child appeared to be not more than two years of age. He further observed that only a mother could look after a child of that age properly. He directed that the child should be handed over to Mrs. Z. D. Yasman on "sapurdari" provided she furnished a security bond of Rs. 10,000 with one surety till such time as some competent Court decided the matter finally with regard to the custody of the child.
3. The petitioner approached the Sessions Judge on the revisional side on 5th April 1969. Mr. Ijaz Nisar, Additional Sessions Judge, heard arguments on 23rd of September 1969, and fixed the case for orders for 2nd of October 1969. He again heard arguments on 14th of November 1969. There were two further adjournments but Mr. Ijaz Nisar was in the meanwhile transferred. He was succeeded by Mr. Zafar Ali Khan who on 13th of February 1970, fixed the hearing of the case for 31st of March 1970. Having despaired of getting relief from the Sessions Court the petitioner moved the present revision petition on 16th of March 1970. I find that Mr. Zafar Ali Khan made a separate reference on 11th of April 1970, for quashing the order and notice was also issued in that. This reference has been registered as Cr. Revision No. 516 of 1970.
4. I have heard the learned counsel at length. There is no denying that the order of the learned Magistrate is vitiated because of lack of territorial jurisdiction. In the application it has been clearly stated that the child was living with his grand parents in Sheikhupura District and it is open to question whether Mr. Naqvi had the jurisdiction to issue a warrant under section 100, Cr. P. C. with regard to a minor which was in the custody of his grand parents in another district. It is also correct that no case under section 100, Cr. P. C. was made out from the statement of the respondent made before the Magistrate in support of her applica tion. All that was stated, was that an order be passed handing over the child to her as a child of two years could not live without his mother. Now section 100, Cr. P. C. reads as follows :-- "If any Magistrate of the First Class or Sub-Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for person so confined ; and such search shall be made in accordance there with, and the person, if found shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper."
It is clear from the record that the custody of the child with hisl grand parents did not constitute an offence. The learned!
Magistrate could not, therefore, act in terms of section 100,1 Cr. P. C. I
5. Mr. Jeremy the learned counsel for the respondent does not find himself in a position to seriously repel the legal attack on the order of the learned Magistrate. His argument however is that the revisional power is supervisory^ power meant to correct miscarriage of justice and other errors*of law impinging on safe administration of justice. He submits that the order of the learned Magistrate may be entirely illegal but if it has given substantial relief to a citizen, it may not be interfered with.
He further submits that since the child has now remained with the mother for more than two years, it will be rather unjust to upset that order and direct the return of the child to the grand parents. Mr. Jeremy in this connection has relied on Allah Dia and others v. Emperor (1). In this case the Chief Court had found as a matter of fact that the procedure adopted by the trial Court was illegal but it refused to interfere as no prejudice was shown to have been caused by the alleged illegality.
6. It was submitted by Mr. Aqil Mirza that in any case the child was to remain with his grand parents either paternal or maternal because the mother at present is working as a nursing sister in the Lady Willington Hospital and the father is employed at Mianwali. He further asserted that the child was at present at Sahiwal with his maternal grand parents as the mother cannot keep him in Lahore. Mr. Jeremy has filed an affidavit to show that the respondent has rented a house at Lahore and the child is with her.
7. Mr. Jeremy has referred to section 44 of the Divorce Act and submits that the case of cruelty and adultery having been proved against the petitioner the child has to be handed over to the respondent under the law by a civil Court. I am not called upon to say anything on this aspect of the case because as stated above, the matter is before a civil Court for examination. I, however, feel that notwithstanding the illegality of the order of the learned Magistrate it will be in the interest of justice if the child continues to remain with the mother till the final decision of that matter.
8. I, therefore, quash the order of the learned Magistrate as illegal but substitute a decision instead to the effect that the child shall continue to remain with the mother till the final decision regarding his custody by a competent Court. The bond already furnished by her in respect of this matter shall continue to be effective.
9. Mr. Naqvi shall be called upon to explain as to under what provision of law be took the congnizance of this matter in spite of the clear fact that the minor was in Sheikhupura District and that the evidence before him did not attract the provisions of section 100 of the Cr. P. C.
10. The two revision petitions are decided accordingly. . [10]