1. The applicant, Muhammad Naeem, through his counsel, has filed this application under section 471, Cr.P.C. seeking relief against respondent No,2 i.e. his ex-wife claiming custody of the minor son, Master Muhammad Shah Noor, presently aged about 3 years.
2. The brief facts giving rise to the filing of this criminal miscellaneous application are that the applicant was married with respondent No,2 on 15-2-1998 at Karachi and out of the said wedlock a child, named above, was born. It has been averred in the memo. of petition that because of dispute between spouses i.e. applicant and respondent No,2, the applicant pronounced Talaq on 15-2- 2000 and since then the minor boy is in the custody of mother and the applicant is not being allowed to meet his son. It has also, been averred that respondent No,2 has contracted second marriage with respondent No,3 and when the, applicant tried to meet his minor but respondents Nos,2 to 4 did allow him and told him that the minor has been shifted to the house of respondent No,1 ' who is the maternal uncle of respondent No,2, subsequently the applicant visited the house of respondent No,1 in respect of meeting with the minor but used abusive language and asked that the Minor is not in his custody.
3. The applicant has filed this criminal miscellaneous application seeking relief, as above notice was issued to the respondents and in response thereto respondents No,2 and 3 and also Detenue. They have denied that applicant is not being allowed to meet hims but they admitted that since respondent No,2 after her second marriage, is living in Lahore therefore the minor has also been shifted to Lahore. I have heard the learned counsel appearing on behalf of the applicant, learned counsel appearing on behalf of respondents Nos,1 to 4 and the learned counsel appearing on behalf of the State.
4. It has been contended by the learned counsel for the applicant that since respondent No,2 has entered into second marriage with respondent No,3 therefore life 'of minor is not secured who is under the unlawful custody of respondent No,1 to 4 and applicant is not being allowed to see or meet with him. The learned counsel has relied upon the cases of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCM R 1891), Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another (PLD 1995 SC 633), Ahmed Sami and 2 others v. Saadia Ahmed and another (196 SCMR 268) in support of his contentions.
5. On the other hand, learned counsel appearing on behalf of respondents Nos/1 to 4 has, contended that the handing over custodyof the child to the respondent is not warranted by law and respondent No,2 being mother of the child cannot live without him who is of very tender age. It has, further been contended that the minor is in the lawful custody of the respondent No,2 who being the natural guardian of the minor is entitled to retain his custody.
6. Learned Addl. A .-G . has contended that resolving the dispute with regard to the custody of the minor, the applicant should approach the Guardian and Wards Court, concerned.
7. The only question for determination in this application is whether the minor Muhammad Shah Noor was forcibly kept by respondents Nos,1 to 4 with them and whether the custody with them is unlawful. In this regard. it may be observed that though the custody of a minor with one of its parents cannot be termed illegal except when it is in violation of an order of a Court of law but in the present case, it is also an admitted position that respondent No,2 has Contracted second marriage with respondent No,3 and has, therefore, lost her right of hizanat which can only be revived in case of her divorce or death of respondent No,3. There are four principles mentioned in the Guardian and Wards Act,. 1890. due to which a mother looses her right of hizanat. i.e.
(i) if she marries a person not related to the child within the prohibited degrees e.g. a stranger, but the right revives on the dissolution of-- the marriage by death or divorce; or.
(ii) if she goes and resides, during the subsistence of the Marriage" at a distance from the father's place of residence; or
(iii) if she is leading an immoral life, as where she is prostitute; or
(iv) if she neglects to take proper care of the child.
8. In the present case, admittedly respondent No,2 has contracted second marriage besides the fact that she has gone to' live in Lahore with her second husband. and according' to their own statement minor has been shifted with her 'to Lahore whereas 'fattier of the .minor (the applicant) resides in Karachi. Therefore, I. am of the considered view that respondent No,2 has lost her 'tight of hizanat It may not be out of place to mention here that from the date when Talaq was announced by the applicant till the contracting second marriage by respondent No,2, the applicant did not claim the custody of the minor but because of second marriage the applicant has approached this Court for the custody of the minor as firstly, respondent No,2 has lost right of hizanat and secondly, minor has been shifted to Lahore and, in my view, it would be very difficult for the applicant to see his child constantly which is right. I, therefore, order that the custody of the minor may be shifted 'to the father but with the observations that mother would be at liberty to approach Guardian and Wards Court concerned for having permanent custody of the minor proving the fact that welfare of the minor is with her not with the applicant as the controversy as raised by the parties needs a thorough enquiry and is left to the will of parties to have the same 'settled before competent Court of jurisdiction.
9. However, in the circumstances, applicant is directed to make arrangement for the meeting of the mother and maternal grand-mother of the minor., with whom too, the minor has been stated to be closely affiliated, with the child weekly at a mutually agreed place which may neither be the house of the applicant nor of the respondents Nos,1 to 4 and let the child remain with them for some part of the day i.e. at about 12-00 Noon who will return the child to the applicant at about 5-00 p.m. without fail. The entitlement to the custody of the minor on regular basis would depend upon the adjudication by the Gurdians Court in accordance with law.
10. With these observations, Criminal Miscellanies Application No,24 of .2002 stands disposed of.