1990 PLP 935 (MLD)

Mst. Shahnaz Kausar has moved this petition under section 491 Cr.P.C. for the recovery and production of two minors, namely, Sahrish Sarfraz (daughter) aged 5‑1/2 years and Muhammad Aamer (son) aged 3‑1/2 years, from the custody of respondent No.1, their father, so that they may be dealt with according to law.

2. Vide my interim order dated 13‑I1‑1989, 1 temporarily transferred the custody of the aforesaid two minors to their mother, the petitioner.

3. Learned counsel appearing on behalf of the contesting respondent No.1 vehemently opposes the petition in hand and submits that the father being the natural guardian of the two minors is entitled to receive their custody under the Muslim Law. He maintains thal the father of the minors is an earning hand whereas the petitioner is a resourceless lady and under the circumstances if the. custody is allowed to remain with the petitioner, this will definitely affect their welfare. Learned counsel for the petitioner submits that this is in the welfare of the two minors that their custody may be allowed to remain with her because of their tender ages. Learned counsel for the respondent has placed reliance on the rule laid down by a learned Single Judge of this Court in Nasreen Akhtar v. Muhammad Farooq (Cr.Misc.No. 771/H‑89) and Mst. Rabia Bibi v. Nazir Ahmad (Cr. Misc. No. 536/H‑89). Learned counsel for the petitioner in turn has placed heavy reliance on the judgment of the Hon'ble Supreme Court reported as Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891 and Shabbir Hussain v. Mst. Shahnaz Parveen and another 1989 PCr.LJ 1689.

4. I have heard the learned counsel for the parties at considerable length and have perused the entire record. At the very outset it may be observed that m the earlier Cr. Misc. No. 618/H‑89, I noted the weak health of the minors. Particularly, the female minor was having some trouble in her throat and was suffering from some ailment. Some mass was outwardly visible on the left side of her neck and it was pointed out to both the parties and their learned counsel. Admittedly, she was not examined by some Doctor for her treatment. I, therefore, immediately, directed that the minor be got checked up by a competent Doctor in Services Hospital, Lahore. Consequently, both the minors were taken to Hospital for medical check‑up and treatment. Later on, I was informed that the minors have been effectively treated by the doctor on duty. The respondent was, consequently, found negligent by me in looking after the welfare of the minors inasmuch as he failed to take the minors to the doctor for treatment. I, therefore, decided that mother‑was entitled to the custody of the minors for the time being. However, the parties in the meantime entered into a compromise of their own and went together to live as husband and wife with their minors. It may the observed that in this compromise, the petitioner and. her father played a very reasonable role which resulted in an understanding between the spouses. Unfortunately, this compromise between the parties later on proved to be a short lived compromise. A complaint has been made by the petitioner in this petition that the respondent‑husband did not abide by the compromise made by him with her in Court and that he did not provide her and the minors a separate house to live in as was undertaken by him to do so. It is further complained that as per the undertaking given by respondent No.1, the pocket money too was not paid to the petitioner. Lastly, it was brought to my notice that respondent No.1 with the active support of his other relatives physically turned out the petitioner from his house and snatched away the two minors from her. Again, I summoned the minors to see myself the condition of the minors who were given to the petitioner on 13‑11‑1989 as observed earlier. I find that the minors are having excellent health and are happy with their mother. I asked the question to the learned counsel for the contesting respondent as to whether he was satisfied with .the health of the two minors. However, he submitted that he cannot compare the present health with the earlier health condition of the two minors when they were in the custody of the respondent, their father, obviously, for the reason that he did not see them at that time. I am completely satisfied that the two minors are happily living with their mother and that respondent No.1 did not fulfil his own undertaking made by him in Court in not paying the pocket money to the petitioner. I questioned respondent No.1 as to whether he has sent some money to the petitioner and the minors as promised by him. He frankly admits that he did not do so. He also was unable to give any reasons for not complying with his earlier commitment. He also admits that he did not send any gifts to the minors during this period. This shows the extent of the interest being taken by respondent No.1 for his minor son and daughter. In Muhammad Javed Umrao's case 1988.S C M R 1891 it was observed by the Hon'ble Supreme Court of Pakistan that interim custody of the minors while keeping their welfare in view can certainly be handed over to the mother in exercise of powers under section 4%, CrY.C. The principle laid down in the said case has also been followed by a Division Bench of this Court in Shabbir Hussain's case 1989 P.Cr. L J 1689. In view of the judgment of the Hon'ble Supreme Court, I feel no hesitation whatsoever in allowing the temporary custody of the two minors to the petitioner Mst. Shahnaz Kausar for the time being. The contention that the learned Guardian Court has the' exclusive jurisdiction to deal with the custody matter under section 25 of the Guardians and Wards Act, and that powers under section 491, Cr.P.C. in that behalf cannot be exercised by this Court is wholly devoid of force. The two provisions proceed independently to meet different situations. If the facts and circumstances of a particular case warrant immediate action, provisions of section 491 Cr.P.C. can be pressed into service for grant of a quick and speedy relief to an aggrieved person within the shortest possible time. It may be observed that section 491, Cr.P.C. is itself a complete Code. In my view, the provisions or section 491, C.P.C. do not run counter to the provisions of section 25 of the Guardians and Wards Act. The grant or refusal of custody of minors to the applicants under section 491, Cr.P.C. is always temporary in nature and shall always by subject to the elaborate decision by the Guardian Court. In depth probe has to be conducted by the Guardian Courts on the basis of evidence of the parties as to where lies the welfare of the minors in appropriate proceedings under the Guardians did Wards Act.. In my view, this controversy has been set at rest by the August Supreme Court in Muhammad Javaid Umrao's case. Resultantly, the custody of the two 'Minors shall remain with the petitioner/ mother till such time the same is decided permanently by the competent Court on the basis of the evidence of the parties. This petition, therefore, succeeds and is allowed with no order as to costs. M.BA./S‑661/L Petition allowed.