1. This petition under section 491, Cr.P.C has been moved by the petitioner for handing her the custody of the children born to the petitioner and her husband respondent No,1 during the subsistence of their marriage. The list of children is annexed as 'A' with the petition which is reproduced below:- LIST OF PETITIONER'S CHILDREN: NAME & FATHER'S NAME:AGE SEX Sher Muhammad s/o Nisar.18 Yrs. Male-son Muhammad Bashir Ahmad s/o-do-16 " Male-son Bashir alias Shatmand-do-11 " Male-son Mst. Shaukat D/o-do-8 "Female- daughter.
2. Mst. Zainab D/o -do-7 II Female- daughter.
3. Fazal Sajjad s/o -do-5 " Male-son 7.Tufail Ejaz s/o -do-3 II Male-son
8. Baby Saima d/o-do-about 2 "Female- daughter.
4. 2.The factual back-ground for filing the petition is that the petitioner was married to respondent No,1 in 1975 and out of this marriage they got 8 children as detailed in Annexure 'A'. It is alleged that respondent No,1 was inclined to marry respondent No,2 and, therefore, started forcing the petitioner to permit him to contract second marriage with the said respondent. The petitioner, however, did not yield to such pressure and her brother filed Habeas Corpus Petition in High Court complaining of the maltreatment of the respondent with the petitioner on account of the permission for second marriage. This matter was, however, compromised and on assurance of respondent No,1 that he would not in future mal-treat or force her to agree to his second marriage. The petitioner then returned to him and lived with him for sometime, however, she was again compelled to leave. the house without allowing her to take the children who are uptil now in his custody. It is stated that respondent No,1 has contracted second marriage with respondent No,2 and, therefore, both of them have confined the children illegally and are not allowing the petitioner to take them back. In these circumstances the relief sought is custody of the children to the petitioner. Respondent No,1 in his written statement refuted the allegations, relating to coercing the petitioner and forcibly retaining the children, made in the petition and stressed that this Court has no jurisdiction under section 491, Cr.P.C. to take cognizance of the dispute as reflected in the petition.
5. 3.I heard both the sides in support of their view points and went through the available record.
6. 4.There is no cavil with the proposition that it is only the Guardian Judge who is competent to deal with the cases of the custody of the children and the provision of section 491, Cr.P.C. would, ordinarily, not be available. in such a matter. Section 491, Cr.P.C. envisages to deal with a person detained illegally or improperly either in public or private custody and to direct to set him at liberty if the detention was found to be illegal or improper. If the detention is found to be improper as in case of the minor children by person other than legal guardian then the High Court in exceptional cases can restore the custody to the person who has been forcibly deprived of it by way of interim relief. This order of interim custody will be subject to the final adjudication by the Guardian Judge whose order would ultimately regulate the custody. It could not be controverted that out of the eight children Mst.Shaukat, Mst.Zainab and Saima are respectively 8 years, 7 years and two years of ages while Fazal Sajjad and Tufail Ejaz are respectively 5 years and 3 years of ages. The petitioner is real mother of the said daughters and sons and prima facie appears to be in a proper position to look after them unless it is proved otherwise in the proceedings regarding appointment of guardian if initiated before the Guardian Judge. I, therefore, direct respondents 1 and 2 to hand over Mst. Shaukat, Mst.Zainab, Fazal Sajjad, Tufail Ejaz and Baby Saima minors to the petitioner who would keep them alongwith her till the factum of their custody is determined by a Guardian Judge or till they become majors as the case may be. The petition is disposed of in the above terms.