P L D 2018 Supreme Court 79 (PLP)

MAQBOOL BAQAR, J.

The petitioner, who is a mother of two minor children, namely, Haleema Nawaz (daughter), aged about 3-1/2, and Muhammad Hussain Nawaz (son), aged about 5 years, has filed the present petition against the judgment dated 30.8.2016, whereby a learned Single Judge of the Lahore High Court dismissed her petition under section 491 Cr.P.C. In her said petition she has alleged that her husband, the respondent No.1, with whom she was living with the minor children, turned her out of the house, and kept the children with him. However, through the impugned judgment, the learned Judge, whilst noting that during the proceedings, the minors were not inclined even to listen to the petitioner, and although on the orders of the Court the minors were left in the company of the petitioner for quite a while, but could not be eased up and remained crying throughout. They continued crying even when the matter was taken up for hearing. The learned judge further noted that according to the respondent No.1, the father of the minors, the petitioner has herself abandoned him and the children a year aback, whereas the petitioner claimed that the minor were with the respondent No.1 since last six months only. In the circumstances, and in view of the fact that, as evident from the way the children responded to the presence of the petitioner and behaved with her, found it appropriate to dispose of the petition by leaving the petitioner at liberty to, if so advised, approach the Court of Guardian and Ward where the question of custody of the children be decided after recording evidence.

2. During the hearing before us it was disclosed that the petitioner is a Afghan refugee and has no reliable reference here. The learned counsel for the respondent expressed his apprehension that since the petitioner has no roots or any reference in this Country, it is apprehended that she may vanish with the children without any trace leaving the respondent in complete lurch. The attitude/behavior of the children as recorded in the impugned judgment, and the fact that the petitioner herself complained before us that even now both the children have expressed their dislike for her by twitching and biting her which, give way to apprehend that the children, at least for now, cannot live with the petitioner happily, and their custody with the petitioner shall not be conducive for their welfare and healthy development. Furthermore, in view of the fact that she is living here as a refugee, there is no guarantee that she will not remove the children from the jurisdiction of this Court and take away the children across the border. We would therefore dispose of this petition, by leaving the petitioner at liberty to approach the concerned Guardian and Ward Court, for seeking custody of the minors, and till the time she obtains order either for the custody or for visitation of the minors from the said Court, the respondent No.1 shall continue to produce the children before the Additional Registrar (Judicial) of this Court and leave them in the company of the petitioner from 9 am to 1 pm every Friday without fail as ordered earlier.

3. The Guardian court shall, if approached, decide the matter on the basis of the evidence recorded by it, and without being influenced by any observation made herein, the same being absolutely tentative KMZ/L-2/S Order accordingly.