1. ' I have heard the learned Advocate for the parties as well as the learned Assistant Advocate- General.
2. ' This application has been filed under section 491, Criminal Procedure Code, stating that two minor children, namely, Miss Fozia and Miss Salma daughters of the applicant and respondent No,1 are illegally confined and kept in wrongful custody of respondent No,1 against the wishes of the minors and the applicant.
3. ' Vide order, dated 19-1-1998 notice of the Criminal Miscellaneous Application No,4 of 1998 was ordered to be issued to the respondent No,1 sand in pursuance thereof he appeared before this Court on 2-2-1998 with the request that he may be supplied copies of the applicant's application so that he may submit his reply thereto. On the said date the respondent No,1 was directed to produce the minors, namely, Miss Fouzia and Miss Salma in Court on 16-2-1998 but on the Said date the respondent No,1 produced in Court only Miss Fouzia and failed to produce Miss Salma on the ground that she is taking her examination, therefore, she could not be produced. The said statement of respondent No,1 was rebutted and denied by his minor daughter, Miss Fouzia, aged about thirteen years and she stated that Miss Salma neither has gone to school nor she is taking any examination and the respondent No,1 has deliberately avoided to produce her in Court.
4. However, at the request of the parties, the case was adjourned to 18-2-1998 with a clear direction to respondent No,1 to produce the minor, Salma aged about ten years, in Court on 18-2-1998 at 1-00 p.m. At the time of passing of such order the respondent No,1 undertook not to harass or pressurise his said minor daughters for making any false statement in Court or to overawe or threaten them in any manner.
5. ' In compliance with Court order, dated 16-2-1998 the respondent No,1 has today produced the two minors namely Miss Fouzia and Miss Salma, in Court and in the presence of the parties, their Advocates and the learned Assistant Advocate-General, I enquired from the two minors, whose ages as admitted by their parents are 13 and 10 years respectively, the manner in which they are being kept by their .Father in his house. Both the girls stated that earlier they were living with their mother but for some time their father is keeping them in his house against their wishes and in spite of their requests he is not allowing them to go to their mother the applicant. They also stated that the respondent has been extending threats to them and on number of occasions have pointed towards them gun and hatchet saying that if they ever go to their mother he will kill them. Miss Fouzia, in the presence of the respondent No,1 and in open Court made a very vocal statement that when on 16-2-1998 she left the Court and went to the house of respondent No,1 he again threatened her not to make any complaint to the Court about his unbecoming behaviours. Even the other minor, Miss Salma, has made a grievance that the respondent No,1 has all along been threatening her and her sister Fouzia that if they attempt to go to their mother he will kill them. Such statement made in open Court' has not been denied by the respondent No,1 . The two minors stated that they wish to live with their mother and not with their father.
6. ' After hearing the two minors, as aforesaid, the learned Advocate for the applicant in support of his submissions placed reliance on the case of Mst. Shabana Niazi v. Muhammad Khalilur Rahman reported as 1994 PCr.0 715, wherein it has been held that in a case under section 491, Cr.P.C. In exceptional cases High Court can interfere to order restoration of custody which has been disturbed illegally or improperly.
7. ' Learned Advocate for the respondent No,1 submitted that as to the expressions/statement of the two minors, referred to above he has no answer but he still submitted that the two minors are in lawful custody of their father and as such the applicant cannot be granted any relief under the provisions of section 491, Cr.P.C. And in order to claim the custody of the two minors she should approach the Guardian Court in accordance with law. In support of his submissions the learned Advocate for the respondent No,1 cited the case of Shri Mati Pari Bai v. Imrat Lal reported as 1997 PCr.LJ 105 wherein it has been held that since the five minors have been residing with their father who does not wish to hand over their custody to their mother on account of the welfare of the minors, therefore, the petitioner may approach 'Guardian Court for interim custody of the minors and also for their final custody. I have carefully read the cited judgment and find that its facts and the facts of the present case are totally different, therefore, with respect I would refrain from placing reliance on the judgment cited by the learned Advocate for the respondent No, I am fortified in my view, as is also submitted by the learned Assistant Advocate-General, that a Muslim girl has to live with her mother, who has the right of Hizanat, till such time that she is married and/or attains the age of 16/18 years, unless through cogent evidence mother is declared to be disentitled to have the custody of her daughter or daughter;;.
8. After hearing the two minors about the manner in which the respondent No,1 has been treating them I have come to the conclusion that even if he is not detaining them illegally, but surely he is keeping them in his house improperly and the restraint on the two minors is patently unjust, cruel and obviously not in the best interest of the two minors and thereby the welfare and proper upbringing the two minors will be adversely affected.
9. ' For the foregoing I hereby allow this application and permit the applicant to take the two minor daughters with her, however, in order to ensure the welfare of the minbrs. I direct the applicant to submit a monthly report to the Additional Registrar of this Court to the effect that the welfare of the minors is being taken care of and while submitting such statement the two minors should also be produced before the Additional Registrar so that he may enquire and ascertain from them about their well being.
10. ' 1 further direct that this order in no way will affect the right of respondent No,1, either to meet the children by making a proper application to the Additional Registrar in which event the applicant on receiving intimation/notice of such application should produce the minors in the office of the Additional Registrar on the appointed date and time enabling the respondent No,1 to meet his children or to approach the competent Guardian Court to claim the custody of his minor daughters in accordance with law.
11. ' The applicant has expressed her apprehension that as and when she will leave the Court with her minor daughters the respondent No,1 and his relatives, who are also present in Court premises, may harm them. In view of such situation the learned Assistant Advocate-General undertakes to provide police escort to the applicant and the two minors so that they may reach the home of applicant. Any further assistance, if sought, may be made available by the Additional Registrar of this Court.
12. ' This criminal miscellaneous application is, thus, allowed.