1994 P Cr (PLP)

Malik Yousaf Farooq for Petitioner. Ch. Abdur Rashid for Respondents. Date of hearing: 30th November, 1993. The petitioner filed this petition under section 491, Cr.P.C. for the production of minors namely Farrah Fatima aged 3 years and Muhammad Bilal aged 1 year, in this Honourable Court with the prayer that custody of minor children may be entrusted to her, being their real mother.

2. The brief facts for the decision of this case are that the petitioner and respondent No.1 were married on 25-12-1989 at Lahore. Out of the wedlock two minor children namely Farrah Fatima aged 3 years and Muhammad Bilal aged 1 year were born. It is alleged in the petition that these two minor children were snatched from the petitioner by the respondent and they are in his illegal detention.

3. Vide order, dated 24-11-1993 a bailiff of this Court was deputed to recover the minor children from the illegal detention of the respondent and produce them in this Court on 27-11-1993. On the said date, the custody of minor children namely Farah Fatima aged 3 years and Muhammad Bilal aged 1 year was handed over to the petitioner temporarily subject to her furnishing security in the sum of Rs.30,000 (Rupees thirty thousand only) to the satisfaction of the Deputy Registrar (Judicial) of this Court till 30-11-1993.

4. The learned counsel for the respondent submits that actually on 2-11-1993, the petitioner left the house of the respondent of her own free will and abandoned the children there. He has mentioned the name of one Syed Gulzar Shah, in whose presence the petitioner left the minor children.

5. Both the parties are Sunni Muslims. According to Hanafi law, the mother is entitled to keep the custody of a boy upto 7 years of his age and for the female upto the age of her puberty. On 27-11-1993 the case was adjourned to enable the parties to amicably settle the dispute with respect to the custody of the children. Today, they have informed the Court that it is not possible. 6. 1 have heard the learned counsel for the parties in support of their respective claims.

7. The learned counsel for the respondent has taken up the objection that the minor children were living peacefully, happily with the respondent and he was looking after their interest. In this regard, he has placed reliance on 1977 P Cr. L J 800 and P L D 1972 SC 6.

8. I only directed the bailiff to recover the minors as they are of tender ages. Normally they need care and affection of their mother. If the mother has abandoned her children that fact can only be proved after recording of detailed evidence. I while disposing of this petition in a summary manner and exercising my -powers under section 491, Cr.P.C. cannot. record the evidence and pass a final order regarding the custody of the children which is exclusively within the domain of the learned Guardian Judge. Anyhow, I temporarily regulate the custody of the minor children and the matter will be finally decided by the learned Guardian Judge. The children being minors, their custody, in the meantime, is handed over to their mother with the direction that the mother will allow her husband to see the children once a week on the day and time mutually agreed to between them. The respondent may if so advised, approach the learned Guardian Judge for obtaining the custody of the children on the ground which is available to him and the learned Guardian Judge when approached would pass an interim order regulating the custody of the children during the pendency of the petition before him. I have ordered that the interim custody will remain with the wife, but if he comes to the conclusion that the welfare of the minors requires that their custody may be granted to the respondent in spite of the fact that under Hanafi law, the mother is entitled to Hizanat, then he can pass the order accordingly without being influenced by the interim order passed by this Court. He is directed to dispose of the Guardian petition if filed by the respondent, as expeditiously as possible. With this observation, this petition stands disposed of. The security amounting to Rs.2,000 (Rupees two thousand only) deposited by the petitioner may be refunded to her after due verification. N.H.Q./S-386/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.