Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner prays that a bailiff be deputed to recover three minor children namely: Afifa Qamar, Zainul Abedin and Hussnain Ali from the illegal custody of respondent No,2 and be handed over to the petitioner.
2. The brief facts of the case are that the petitioner and respondent No,2 married with each other on 21-7-1993 and out of the wedlock three children namely: Afifa Qamar aged about 6 years, Zainul Abedin aged about 4 1/2 years and Hussnain Ali aged about 3 years were born. The relations between the petitioner and respondent No,2 became strained and divorce has been given by respondent No,2 to petitioner on 3-6-2000. The petitioner claims that she is running Computer School in Mohallah Muhammad Hassan, Moor Eminabad, District Gujranwala and is earning her livelihood.
3. With the mutual and uncle standing initially the children were allowed to stay with the petitioner as the respondent had contracted second marriage with one Mst. Tanveer Bibi. It is also alleged that said Mst. Tanveer Bibi was involved in a murder case which is still pending at appellate stage.
The petitioner does not want to let her children stay with Mst.Tanveer Bibi. The respondent has approached the petitioner with request, forcing her to marry with his real brother and re-marry with him in order to resolve the issue of Halala. When the petitioner deadly refused to accept this proposal, he look away the three children from the custody of the petitioner forcibly. It is in the interest and welfare of the minors that their custody may be handed over to the petitioner.
3. After filing of this petition, a biliff was deputed to recover the above said children vide order dated 26-10-2001 and on 29-10-2001 bailiff reported that the address given in the petition was shop of respondent No,2 and the minors were not available there, hence, this Court issued summons to respondent No,2 telegraphically and through registered A.D. on 2-11-2001 nobody was present on behalf of respondent No,2, hence, respondent No,1 Station House Officer Police Station, Moor Eminabad District Gujranwala was directed to recover the said minors and to produce them in this Court. Respondent No,1 did not produce the children and this court again directed him to produce the children on 19-11-2001. Nobody entered appearance on 19-11-2001 and the case was adjourned to 26-11-2001. No body entered appearance on 26-11-2001 on behalf of respondents and respondent No,1 also did not appear hence, non-bailable warrants of respondent No,1 was directed to be issued, order was typed but it has not yet been signed when respondent No,1 appeared alongwith respondent No,2 and stated that they were waiting for call in another Court room, hence, non-appearance was due to mis-understanding and prayer was made that order for issuance of non-bailable warrants may be re-called and they promised to produce the children today.
4. Learned counsel for the petitioner contends that the custody of the minors has been taken away by the respondent No,2 in an illegal and unlawful manner. The petitioner is real mother and is entitled to the custody of the minors. The removal of the minors from the lawful custody is sufficient to seek remedy under section 491, Cr.P.C. hence, the minors may be delivered to the petitioner. It is further contended that respondent No,2 has contracted second marrirage with Mst. Tanveer Bibi and it is in the interest and welfare of the minors their custody be given to the petitioner. He relies upon Muhammad Javed Akhtar v. Huma Naz and another, (2000 SCMR 1410), Ahmad Sami and 2 others v. Saadia Ahmed and another (1996 SCMR 268),and (1996 SCMR 1907, and Mst. Fazalan Mai v. Rab Nawaz and another (1991 PCr.LJ 12) and Mst. Shazia Sharif v. Zeeshan Ahmed Dodhy and 2 others (PLD 2001 Lahore 347).
5. On the other hand, learned counsel appearing on behalf of respondent No,2 has opposed the delivery of minors to the petitioner on the ground that the petitioner does not own any house. The first thing which is yet to be seen, he argues whether the petitioner can maintain the children who are studying in schools and are regularly attending the classes. It is further contended that new wife of respondent No,2 is looking after the children as mother and the children are satisfied with her and if the custody is given to the petitioner it will not be in the interest and welfare of the children. It is further contended that only the Gurdian Judge can decide the issue. Learned counsel for respondent No,2 denies the allegations that the children were removed by respondent No,2 and has stated that the petitioner herself had left the children in the custody of respondent No,2.
6. I have heard the learned counsel for the parties and also perused this petition. The allegations have been levelled against respondent No,2 that he has taken away all the three children namely: Afifa Qamar, Zainul Abedin and Hussnain Ali from the lawful custody of the petitioner. It is admitted fact that the petitioner is real mother of the children and respondent No,2 after pronouncement of divorce to the petitioner has contracted second marriage with Mst. Tanveer Bibi but the petitioner has not contracted second marriage. The petitioner claims that she is running computer school.
She also claims that she has no intention to re-marry and intends to live with her children throughout her life.
7. In such circumstances, without going into the merits of this case the custody of the minors require to be handed over to the petitioner who is mother as she is entitled to the custody. This Court under section.491, Cr.P.C. can hand over the minor children in such-like circumstances. I am fortified in my view by placing reliance on august Supreme Court in (2000 SCMR 1410) Muhammad Javed Akhtar v. Huma Naz and another, the relevant portion is reproduced as under: "We have heard the learned counsel for the petitioner as also Mr.Ainuddin Khan, learned Additional Advocate-General, Sindh on behalf of respondent No,2. A perusal of the impugned judgment itself shows that the private parties in this lis were directed to initiate appropriate proceedings before the concerned Guardian Judge who was duly cautioned not to be influenced by any observation made therein by the learned Judge in Chambers. As regards the direction to hand over the minors to respondent No,1 in her application under section 491, Cr.P.C. we suffice by observing that both the children are of tender age and that the lap of the mother for their nurture at this juncture cannot but be held to be in advancement of the law on the subject."
Similar view has been taken in (1996 SCMR 268) Ahmad Sami and two others v. Saadia Ahmed and another, which for ready reference is reproduced as under:- "It is true that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of child but this does not mean that in exceptional cases when a person who is holding the custody of minor lawfully and has been deprived of the custody of minor has no remedy to regain the custody pending adjudication by the Guardian Court. In exceptional cases where the High Court finds that the interest and welfare of minor demanded that the minor be committed immediately to the custody of the person who was lawfully holding the custody of minor before he was deprived of the custody, the Court can pass appropriate order under section 491, Cr.P.C. directing restoration of the custody of minor to that person as an interim measure pending final decision by the Guardian Court."
It is also held in Mst. Fazlan Mai's case reported in (1991 PCr.LJ 12), the relevant portion is reproduced as under: We have considered the matter carefully. We feel persuaded to agree with the learned counsel for the appellant. Undisputedly,three children/detenus are less than 7 years of age. Baqir is a suckling baby. The appellant is the real mother of the children. She has not contracted second marriage whereas the respondent has recently married third wife. We feel that the writ petition could have easily been adjudicated upon on the admitted facts and there was hardly any need to record evidence or to hold investigation."
8. Without commenting upon the merits of the case, this Court is only concerned with the factum of allegations levelled against respondent . No,2 that he has removed the custody of children, hence, the custody of children is handed over to the petitioner with the direction to the petitioner to arrange for the meeting of the children with respondent No,2 if he wishes to meet the children in the office of learned counsel for the petitioner on every Saturday. The children will remain with the father respondent No,2 for 24 hours from Saturday 2-00 p.m. to Sunday 2-00 p.m. and the children will be handed over back at the residence of the petitioner by the respondent No,2. This temporary arrangement has been made till the final decision by the Gurdian Judge, if the petition is moved before him by any of the parties. He shall decide the petition in accordance with law within shortest possible time.
9. The Guardian Judge can vary the arrangement for the meeting of children with respondent No,2.
It is further clarified that this order has been passed merely only under section 491, Cr. P.C. The learned Guardian Judge will not be influenced by the observations made in this order and will decide the case independently in accordance with law. This petition is disposed of in the above said terms.