2013 P Cr (PLP)

SYED IFTIKHAR HUSSAIN SHAH, J.

Petitioner Mst. Samreen Fatima has assailed the legality of order dated 13-7-2012 passed by the learned Additional Sessions Judge Rawalpindi whereby an application made by the petitioner under section 491, Cr.P.C. for the recovery of her minor son namely Abdul Saim Ali was dismissed. The petitioner made the said petition for the recovery of minor Abdul Saim before the learned Additional Sessions Judge Rawalpindi with the assertion that her minor son has been delivered to Ali Imran respondent No.2, his father under the pressure of Jirga, which is not lawful. It has been contended that the learned Court below ignored this aspect of the case and dismissed her petition vide order dated 13-7-2012 erroneously.

2. Succinctly, the facts of the case are that Mst. Samreen Fatima petitioner entered into the matrimonial life with respondent No.2 on 29-7-2007 and out of the wedlock Abdul Saim was born on 2-3-2009. Thereafter, a dispute arose between the parties and the petitioner instituted a suit for dissolution of marriage, recovery of maintenance, recovery of articles of dowry and recovery of the delivery expenses whereas respondent No.2 made a petition under section 25 of the Guardians and Wards Act for seeking custody of his minor son. All the matters were contested and ultimately both the parties arrived at a compromise by submitting their affidavits Mark-A and Mark-B before the learned trial Court and the matter was settled in the following terms:-- "(1) Whole the dowry articles of plaintiff No.1 have been returned to her by the defendant and nothing remained left now. (2) Plaintiff No.1 has stated that she has relinquished her claim of three tolas gold ornaments as claimed by her. (3) Plaintiff No.1 has also stated that she has handed over the custody of minor namely Abdul Saim Ali to the defendants." In the light of the aforesaid affidavits Mark-A and Mark-B, both the matters regarding custody of the minor and suit filed by the present petitioner were disposed of.

3. Learned counsel for the petitioner has contended that the custody of the minor was not given by the petitioner to respondent No.2 with her free consent rather it was given under the pressure of Jirga; that the welfare of the minor lies in handing over his custody to the petitioner, her mother but the learned Court below vide impugned order dated 13-7-2012 has ignored this aspect of the case and has dismissed the petition for the recovery of minor arbitrarily. Relies on cases titled "Iffat Mir v. Mobeen Qasim Mir (1991 PCr.LJ 2372 [Lahore])", "Rubina Ali v. Rafaqat Ali and others (1997 MLD 2066 (Lahore])"; "Mst. Shehnaz Bibi v. Muhammad Akram and others (1995 PCr.LJ 307 [Lahore])"; "Mst. Dilbar Jan v. Khan Muhammad (1992 PCr.LJ 683 [Karachi])"; "Saadia Ahmed v. The State and 3 others (1996 MLD 30 [(Karachi])" and "Mst. Hameed Mai v. Irshad Hussain (PLD 2002 Supreme Court 267)".

4. I have heard the learned counsel for the petitioner and have perused the available record.

5. Under section 352 of Mohammadan Law by D.F. Mulla, the mother is entitled to the custody (Hazanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father. In the instant case the petitioner has admittedly entered into second marriage and respondent No.2 has not yet solemnized his second marriage.

6. In the referred case titled "Iffat Mir v. Mobeen Qasim Mir (1991 PCr.LJ 2372 [Lahore])", the custody of the minor was obtained without adopting the due course of law but in the instant case the custody has been obtained through the process of law and the application under section 25 of the Guardians and Wards Act made for the custody of the minor has been accepted vide order dated 4-7-2012, therefore, the facts and circumstances of that case are not directly applicable to the facts and circumstances of this case. In other case titled "Rubin Ali v. Rafaqat Ali and others (1997 MLD 2066 [Lahore])", the dispute was whether the wife has been divorced by the husband or not but in the instant case the petitioner has admittedly obtained the decree for dissolution of marriage vide order dated 24-6-2011, therefore, the facts and circumstances of that case are not directly applicable to the facts and circumstances of this case. Similarly, in case titled "Mst. Shehnaz Bibi v. Muhammad Akram and others (1995 PCr.LJ 307 [Lahore])", the child was handed over to the father on the basis of an agreement which the petitioner had alleged that it was executed under coercion. But in the instant case the affidavits were submitted before the learned trial Court in the presence of the parties and their learned counsel and the signatures and thumb-impressions of both the parties were obtained on the order sheet as is apparent from order dated 4-7-2012 and by the same settlement the petitioner had received all the articles of dowry as well as an amount of Rs.80,000, therefore, the facts and circumstances of that case are not directly applicable to the facts and circumstances of this case. Moreover, in case titled "Mst. Dilbar Jan v. Khan Muhammad (1992 PCr.LJ 683 [Karachi])", the custody of the minor was handed over to the father of the minor, ex-husband of the lady on a decision of Jirga but in the instant case on application made by the respondents for seeking custody of the minor was heard and disposed of in the terms of compromise, therefore, the facts and circumstances of that case are not directly applicable to the facts and circumstances of this case. As per facts of case titled "Saadia Ahmad v. The State and 3 others (1996 MLD 30 [Karach])", the custody of the minor was given to the mother in spite of the fact that she herself had voluntarily given up her right but in that case no second marriage was solemnized by the lady, therefore, the facts and circumstances of that case are not directly applicable to the facts and circumstances of this case. Lastly, in case titled "Mst. Hameed Mai v. Irshad Hussain (PLD 2002 Supreme Court of 267)", the custody of the minor was handed over to the maternal grandmother of the child till the pending the proceedings before the learned Guardian Judge but in the instant case the matter has been settled vide judgment dated 4-7-2012 whereby application for seeking custody of the minor was disposed of, therefore, the facts and circumstances of that case are not directly applicable to the facts and circumstances of this case.

7. As per record of the instant case, the petitioner instituted a suit for seeking decree for dissolution of marriage, recovery of maintenance and for the recovery of dowry articles on 6-7-2011 against respondent No.2 Ali Imran, whereas respondent No.2 Ali Imran made a petition under section 25 of the Guardians and Wards Act for seeking the custody of his minor son namely Abdul Saim on 10-2-2012. On 26-6-2011 both the parties along with their counsel appeared before the learned Family Court and the learned Family Court by exercising powers under section 10(4) of the Family Courts Act, 1964, dissolved the marriage on the basis of Khula and to this extent decreed the suit accordingly and framed issued regarding the remaining disputes. Thereafter the parties entered into a compromise and both the parties along with their learned counsel appeared on 4-7-2012 and submitted their affidavits Mark-A and Mark-B and in the light of said affidavits, the suit for the recovery of articles of dowry and the application made under section 25 of the Guardians and Wards Act were disposed of. Moreover, the articles of dowry along with Rs.80,000 were delivered to the petitioner and the custody of the minor was handed over to respondent No.2.

8. After disposal of all the matters in the light of order dated 4-7-2012, the petitioner made a petition for the recovery of minor before the learned Additional Sessions Judge Rawalpindi on 6-7-2012 and the learned Additional Sessions Judge, who was seized of the matter, summoned both the parties, heard them and dismissed the petition while concluding that the petition was made just to frustrate the settlement already arrived at between the parties on 4-7-2012 and that the petitioner had also contracted second marriage whereas respondent No.2 had not yet solemnized second marriage.

9. The conduct of the petitioner disentitles her from filing this revision. Firstly, the custody of minor Abdul Saim Ali was given to respondent No.2 by the petitioner herself during the pendency of the application under section 25 of the Guardians and Wards Act and secondly in the light of compromise arrived at between the parties, aforesaid petition under section 25 of the Guardians and Wards Act was disposed. If the petitioner was aggrieved by the aforesaid order, she could assail the said order by filing regular appeal as provided under the law. She has adopted a novel procedure by making petition under section 491, Cr.P.C. for the recovery of her minor son only to frustrate judgment dated 4-7-2012. Learned counsel for the petitioner has failed to point out any illegality or material irregularity while passing the impugned order dated 13-7-2012, which is otherwise in accordance with law and the same is hereby maintained. Resultantly, the revision petition in hand is without any merits, the same stands dismissed in limine. MWA/S-94/L Petition dismissed.