Through this contempt application under Section 3/4 of Contempt of Court Act, 1976 read with Article 204 of the Constitution petitioner seeks initiation of contempt proceedings against the respondent for violation of order dated 30.7.1999 passed in CH. Misc. No, 414-11/1999 and for the restoration of custody of the children to the petitioner.
2. Brief facts of the case are that Mst. Halima petitioner was married with Allah Bakhsh and out of their wedlock two daughters namely Musarrat Bibi aged about 13 years, Manshab Bibi aged about 12 years and one son namely Javed Iqbal aged about 10 years were born. The petitioner was involved in a murder case of her husband vide FIR No, 248/1994 which was decided by the learned Additional Sessions Judge, Alipur vide judgment dated 30.1.1999 and she was acquitted of the charge. As the children were in the custody of Bashir Crl. Misc. No, 414-H/1999 in this Court, which was decided on 30.7.1999 and custody of all the children, was handed over to the petitioner. The petitioner claims that in the month of August, 2002 the private respondents had taken away all the children from her custody through force and prays for the restoration of the custody of the children to her as well as conviction of the respondents for flouting the above-said order of this Court.
3.This petition was taken up first time on 5.3.2003 and notice was issued to Respondent No, 2 and case was adjourned on number of dates for his appearance, who ultimately appeared on 30.7.2003 and the minor children were directed to be produced in this Court on 1.9.2003. On the said date again the case was adjourned to 4.9.2003 for their production, when Muhammad Abbas produced Mst. Musarrat Bibi and. Muhammad Javed, minor children of the petitioner. Muhammad Abbas also claimed to have contracted marriage with Mst. Musarrat Bibi in February, 2003 with her free will and consent. After hearing the case at some length both the children were sent to Darul Aman, Multan and case was adjourned to 15.92003 for the production of another daughter of the petitioner, namely, Mst. Mansah Mai, who was stated to be in the custody of one Muhammad Iqbal, uncle of Muhammad Abbas. All the children were, however, present in Court on 15.9.2003 and they were directed to remain in Darul Aman. On 18.9.2003, one Muhammad Hussain filed Crl. Misc. No, 440/M/2003 claiming that Mst. Musarrat Bibi was already married with him on 20.4.2002 with the .consent of her mother. On 22.10.2003 all the three children were allowed to go out of their free will and case was adjourned for 10.11.2003 and has been finally taken up today.
4.Learned counsel for the petitioner contends that the order dated 30.7.1999 has attainted finality and it could only be amended/varied by this Court or by the Court of competent jurisdiction but the respondents could not remove the custody of the children from the petitioner by force, who being guilty of contempt of this Court are liable to be punished under the relevant provisions of law, while the petitioner is entitled to the, restoration of custody of children to her.
5. On the other hand, learned counsel for Respondent No, 2 contends that in a panchait, which was convened in the year 2002 the petitioner after receipt of an amount of Rs, 6 lac had handed over the custody of the children to the respondents, hence, their custody is legal. A Panchaiti decision was reduced into writing, copy whereof has been placed on this file.
6. Learned counsel for the petitioner claims that Mst. Maryam Bibi grandmother of the children who now has died owned valuable agricultural land measuring 358 Kanals situated in Mauza Khalti, Tehsil Jatoi, District Muzaffargarh and to grab this and, Bashir Ahmad Respondent No, 2 and his sons in order to deprive the minors from their valuable land, had prepared forged' and fabricated documents showing Muhammad Aslam as general attorney of Mst. Maryam Bibi, who sold 33 Kanals land to his father Bashir Ahmad while remaining land was given on lease for 20 years to anew r brother, and their third brother Muhammad Abbas claims to have content marriage with Musarrat Bibi with her free will and consent in February, 2003. According to the learned counsel for the petitioner all this drama is being played by Bashir Ahmad and his sons only in order to deprive the minors from their valuable property and they also removed their custody from the petitioner in order to maintain their possession over the suit land.
7. On the other hand, learned counsel for respondents Bashir Ahmad, etc. denies the allegations and claims that Muhammad Aslam remained general attorney of Mst. Maryam Bibi for about four years and had not sold the land to anybody but in the life time of Mst. Maryam Bibi except that 33 Kanals land was sold to meet the expenses of murder case of the son of said Mst. Maryam Bibi while the remaining land was leased out for twenty years to his brother Ayyaz in order to meet the maintenance of the children and every document is genuine. It is also contended that Musarrat Bibi being sui juris has contracted marriage with her free will and consent will Muhammad Abbas and she wants to go with her husband including her brother and sister, who are also willing.
8. Learned counsel who filed Crl. Misc. No, 440-M/2003 on behalf of Muhammad Hussain contends that the latter was married with Musarrat Bibi on 20.4.2002 with the consent of her mother Mst.
Halima Bibi. petitioner, who has also sworn an affidavit in this respect, attached with the Crl. Misc., and Muhammad Hussain has also filed suit for restitution of conjugal rights against Mst. Musarrat Bibi (copy of Nikah Nama is also attached with the said application and has also shown the original Nikah Nama). Claims that she could not contract another marriage with Muhammad Abbas, which is void. According to him, she should not be allowed to accompany Muhammad Abbas as their union will be illegal and immoral. Also contends that the respondents as well as Muhammad Abbas to grab the property of the minors did all this fictitiously.
9. Learned AAG, on the other hand, contends that the order dated 30.7.1999 passed by this Court in Crl. Misc. No, 414-H/1999 has attained finality and any change towards the custody of the minors with the petitioner could only be made by the intervention of this Court or the Court of competent jurisdiction but as no application was ever moved to the Court, the custody of the minors can be restored to the petitioner. However, he maintains that this Court is fully competent to pass any order keeping in view the welfare and interest of the minors having parental jurisdiction. As regards Mst. Musarrat Bibi, the learned AAG has suggested that since dispute regarding validity of her marriage has arisen, it would be in the fitness of things and to avoid an further complications, she may be sent to Darul Aman until it is solved that which marriage is valid and holds field.
10.I have heard the learned counsel for all the parties and also perused the contents of this petition as well as the documents produced by both the parties.
11. While proceeding with Crl. Misc. No, 414-H/1999 this Court vide order dated 30.7.1999 having found the petitioner as a fit person being mother had handed over the custody of the minor children to her, but this order was never challenged any further and has attained finality. The children could only be removed from the petitioner's custody with the intervention of the Court and neither the punchait as claimed by the learned counsel for respondents Bashir Ahmad etc. was empowered to shift the custody of the minor children to the respondents nor the Panchaiti decision can be preferred over the judgment of this Court, which is still in the field.
12. I have also noticed that the conduct of Bashir Ahmad and his sons was not above the board and according to the allegation levelled by the petitioner in order to grab the valuable property measuring 358 Kanals of the minor children they have prepared the forged documents and also deprived the petitioner of the custody of her minor children by force and illegally in order to maintain their possession over the said land.
13. During the course of arguments it has come to light that bone of contention in this case is the landed property measuring 358 Kanals owned by the minor children, which for the present is in possession of Bashir Ahmad Respondent No, 2 and his sons. Mst. Maryam Bibi, grandmother of the minor children, who was an old lady, as claimed by Respondent No, 3 Muhammad Aslam, had executed general power of attorney in his favour. It is strange that he, being general attorney, has given the said land on Musta'jari to his real brother Muhammad Ayyaz for twenty years on 30.11.1995 against a meager amount and also sold 33 Kanals of land to his father Bashir Ahmad, Respondent No,
2. Another brother of Muhammad Aslam, namely, Muhammad Abbas has come forward with the claim that Mst. Musarrat Bibi was married to him in February 2003. Such conduct of the respondents need thorough probe and the petitioner can seek alternate remedy, if so advised.
14. The respondents have failed to show their entitlement to retain the custody of the minor children as against the petitioner, who is their mother and was entitled to their custody by the order of this Court dated 30.7.1999 passed in Crl. Misc. No, 414/11/1999, which is still in the field. As far as contention of learned counsel for the respondents that the petitioner having remarried with one Allah Bakhsh out of family, who is also involved in so many criminal cases, is not entitled to the custody of the minors is concerned, this question has already been discussed in the order dated 30.7.1999 and cannot be reopened. It was also observed that the respondents having no blood relation with the minor children were not entitled to their custody as against the mother. In this view of the matter custody of Mst. Mansab Mai and Muhammad Javed, minor daughter and son, who are present in Court, is restored to the petitioner being mother. However, no case is made out for conviction of the private respondents as certain documents have been produced by both the parties the veracity of which is yet to be determined. I do not want to comment upon the genuineness or otherwise of the said documents lest it may prejudice the case of either party during the appropriate proceedings.
15. As far as Mst. Musarrat Bibi is concerned, on the one hand one Muhammad Abbas son of Respondent No, 2 Bashir. Ahmad claims her to be his legally wedded wife through Nikahnama dated 14.2.2003 but on the other one Muhammad Hussain has also come forward with the claim that she was married to him on 20.4.2002 with the consent of her mother and a suit for restitution of conjugal rights filed by him is also pending in the Family Court. In such circumstances, as there are two claimants that she was married with them, Mst. Musarrat Bibi for the time being is sent to Darul Aman and she will remain there till the disposal of the suit filed by any of the party or by her to determine the validity of the aforesaid two Nikahnamas. The SHO present in Court will be responsible for her safe admission there today. The petitioner will deposit her expenses in the Darul Aman, as she herself has offered for the same. The Superintendent, Darul Aman shall ensure that none, except the aforesaid younger sister and brother of Mst. Musarrat Bibi, will be allowed to meet her during her stay there without prior permission of this Court or the concerned Ilaqa/Judicial Magistrate. However, she will be provided legal assistance if she wishes to file any suit. Her release from Darul Aman will be with the orders of this Court.
16.With the above discussion and observations, this application stands disposed of.