' This petition under section 491 mat; with section 56: 1, Cr.P.C. Has been filed by father of two children namely Noor Muhammad and Mehboob Muhammad against, inter alia, mother of the children namely Aisha. Siddiqua and others seeking relief in following terms:-- "It is, therefore, prayed that this Hon'ble Court, may be pleased to issue RULE NISI, and order the Private Respondents Nos.2, 3, 4, 5 and 6 to produce Nur Muhammad Moinuddin Jamal and Mehboob Muhammad Moinuddin Jamal minor sons of the applicant before this Hon'ble Court and hand over the minor sons to the applicant. Further, the respondents Nos.2, 3, 4, 5 and 6 be restrained from removing without the permission of this Hon'ble Court minor sons Nur Muhammad Jamal and Mehbood Mehammad Jamal, from Karachi and Pakistan and deposit' their passports any other travel documents, especially visas granted separately with the Nazir. Further, this Hon'ble Court may be pleased to direct the immigration authorities at the Airports not to allow the respondents 2 to 6 take away the minors Nur Muhammad Jamal and Mehboob Muhammad Jamal from Pakistan in the circumstances of the case and in the fair dispensation of ends of justice."
2. After filing of the petition the parties showed extraordinary anxiety in the pleas raised by each other, therefore, an interim order was passed on 10-8-2001 which is in force till this day. In this backdrop it appears to be necessary to lay down a few facts as stated in the application to depict the background in which the applicant filed this petition.
3. Applicant Ghulam Moinuddin Jamal and Aysha Siddiqua Jamal, respondent No,2 were married on 30-12-1993 at Karachi and the said children namely Nur Muhammad Moinuddin Jamal and Mehboob Muhammad Moinuddin Jamal were born on 28th July, 1995 and 24th March, 1997 respectively. Parties lived together in two adjoining apartments but, as alleged by the applicant, on 10-10-1999 the dividing door was locked as a result Aysha Siddiqua, mother of the children lived separately with independent facilities. It is further alleged that on 2-12-1999 Aysha Siddiqua left the marital home alongwith the said two children whereafter on 14-1-2000 the applicant's father brought the children back to his house. Thereafter, a verbal arrangement was reached and the children were allowed to go. On 17-9-2000 the applicant came to know that the respondent No,2 had left for Riyaz (KSA) with the children. It is the case of applicant that for about 10 months she remained there and returned to Karachi on 27-7-2001.
4. I have heard Mrs. Rasheeda Patel, learned counsel for applicant, Mr. Muhammad Arshad Warsi, learned counsel for respondents Nos.2 to 6 and Mr. Fazalur Rahman Awan, learned State Counsel.
5. Learned counsel for applicant submitted that the children are kept in an uncongenial condition in a house which is occupied by a number of other persons and that the respondent No,2 has no independent source of income sufficient to meet the reasonable requirements including schooling of the children whereas the applicant is serving in bank and can afford to bear their requirements of education, health etc. She further contended that no affidavit has been filed to rebut the statements made on oath in his affidavit by the applicant and the comments filed by respondent No,2 are not sufficient. She relied on Muhammad Bashir v. Ghulam Fatima (PLD 1953 Lahore 73), Muhammad Ayub v. Nasim Begum (1996 CLC 1534), Aisha Bibi v. Muhammad Riaz Tariq (1999 CLC 2084) and Ghulam Fatima v. State (1998 SCMR 289) in support of her contentions. Mr. Muhammad Arshad Warsi, learned counsel for respondents Nos.2 to 6 submitted that respondent No,2 is living with her mother at the address given in the application itslf which is in PECHS, a posh area in Karachi which of course, is nearer to lines area but not within that locality, therefore, it may not be assumed that the children are kept in a house 'much below their standard. He relied on Shafqat Ullah Khan v. Naved Shahbaz (1995 PCr.LJ 1868) and submitted that in substance the matter is to be comprehensively dealt with and decided by Guardians and Wards Court within the meaning of provisions of Guardians and Wards Act, 1890, as this Court can only make an interim order for satisfying itself about the custody of the children whether it is unlawful or improper. He submitted that the mother is entitled to the custody of minor children as of right. Mr. Fazal ur Rahman Awan, learned State Counsel did not support the petition and submitted that the right forum for determining the intricate questions is the Guardians and Wards Court.
6. In the precedent cited by Mrs. Rasheeda Patel, learned counsel for applicant viz., Ghulam Fatima v. State (1998 SCMR 289) a number of other precedents have been discussed and, inter alia, with regard to the jurisdiction of this Court, it has been held:-- "Needless to add, that main anxiety of a Court in such matter is to put the minor in custody of the person who is entitled to such custody, keeping in view the Muslim Law on the subject and welfare of the minor. No doubt, ultiniately the order of the Family Court would hold the field irrespective of the fact what order has been passed under section 491 of Cr.P.C. As held in cases of Khushi Muhammad (1998 SCMR 12341, Ahmad Sanii (1996 SCMR 2), 'Miss Hina Jilani (PLD 1994 Lah. 151) and Shafqatullah (1995 PCr.LJ 1868). In any case, there is no illegality in dealing with the question A custody o' a minor under section 491 of Cr.P.C. If such minor is in illegal or unlawful custody."
7. On a plain understanding of the observations of the Hon'ble Supreme Court it follows that there is no illegality in dealing with the question of custody of a minor under section 491, Cr.P.C. Provided that it is reasonably made out that the minor is in illegal or unlawful custody. At this stage it may he mentioned that on issue of notices by this Court the minors were produced by their mother Aysha Siddiqua, respondent No,2 and the matter' was contested on merits, it can, therefore, be said with certainty that mother, having the right of Hizanat and the children being below 7 years it is far from assuming that they were in illegal/unlawful and improper custody.
8. However, learned counsel relying on the case-law referred to above, urged that though the mother has a right of Hizanat the father is natural guardian. In Muhammad Bashir's case (PLD 1953 Lahore 73) the following observations were made:-- "It may he stated that there is an additional reason for the forfeiture of her right to the custody which occurred even while the mother had not yet contracted the second marriage. Though the mother has a right to Hizanat. The father is the natural guardian and entitled to exercise control and supervision over the child and if the mother removes the child to a place where father is unable to exercise his control the mother loses her right to custody."
9. The appealing observation in the above passage is that the mother has a right of Hazanat and the father is natural guardian and entitled to exercise control and supervision over the child and if the mother removes the child to a place where father is unable to exercise his control the mother loses her right to custody. There can be no cavil to the law enunciated as above and interim arrangement made by this Court is almost on same lines, but the significant aspect to be pointed out here is that the above matter was the first appeal before Lahore High Court arising out of a judgment passed by Guardians and Wards Court and the entire law discussed thereon was within the realm of Guardians and Wards Act, 1890. I would agree with Mr. Warsi that at least the applicant may within his rights opt for the proper and required course of approaching the Guardians and Wards Court.'
10. Secondly, in Muhammad Ayub's case (1996 CLC 1534) there was a civil appeal decided by the Supreme Court of Azad Jammu and Kashmir arising, out of an order passed by Shariat Court under the provisions of Guardians and Wards Act, 1890. In Aisha Bibi's case (1999 CLC 2084) a writ petition was filed before the Lahore High Court and there, too, the matter was discussed on the basis of evidence led by the parties before the appropriate trial Court within the meaning of Guardians and Wards Act, 1890.
11. Therefore, following the principles laid down by the Hon"ble Supreme Court in Ghulam Fatima's case (supra) I would agree with Mrs. Rasheeda Patel to the extent that an interim order and appropriate order can be made which has actually been made and is in existence till this day, but at the same time this Court having done whatever was permissible will not pre-empt the finding of Guardians and Wards Court about the custody of the children, as such, that part of the relief cannot be granted.
12. It is relevant to point out here that the provisional arrangement made by this Court through order, dated 10-8-2001 is as under:- "Mr. I.A. Hashmi has filed power today in Court which is taken on record. It is pointed out to learned counsel for the parties that possibility of reconciliation and removing the differences between them may be considered and if convenient a meeting between the parties may also be arranged.
Learned counsel state that they will try to resolve the differences between the parties. Mr. I.A.
Hashmi undertakes that the respondent will not remove the minors from the territorial jurisdiction of this Court until further order. Mr. I.A. Hashmi further states that Mst. Aisha is fully ready to arrange a meeting of the minors with the petitioners. She is directed that the minors may be brought before Nazir on every Saturday at 12-00 noon and the petitioner may be allowed to meet the children at least for a duration of two hours. Mr. I.A. Hashmi wants to file comments, he may file the same in the office before the next date of hearing to come up on 28-8-2001."
13. Accordingly, while disposing of the petition it is directed that the above arrangement shall continue for a period of three months hereof and the applicant may approach the appropriate Guardians and Wards Court for the purpose of custody, maintenance etc., claiming all relevant reliefs under the law. The application stands disposed of alongwith listed application.