1996 PLP 1907 (SCMR)

MUHAMMAD MUNIR KAHN, J.

Ahmed Jawad Sarwar/appellant married Mst. Zenia/respondent on 21-4-1991 at Lahore. A son namely Haider Jawad Sarwar was born out of the wedlock on 29-1-1992. The relationship between the spouses became strained and ultimately resulted in divorce which became effective from 4-3-1994. On 27-7-1994, Mst. Zenia/respondent filed a petition under section 491, Cr.P.C. for the recovery of her minor son from the custody of the father/appellant in the Lahore High Court, Rawalpindi Bench, Rawalpindi. Since the child was living with the father at Lahore, the petition was withdrawn and similar petition was filed in the Lahore High Court at Lahore on 7-8-1994 alleging that in the month of August, 1993, the appellant/husband not only expelled her from house but also snatched the minor child aged 2-1/2 years. The maintainability of the petition under section 491, Cr.P.C. was seriously challenged and the authority of the High Court to invoke section 491, Cr.P.C. in the circumstances of the case, was questioned. The High Court, however, allowed the petition on 18-8-1994 and the custody of the child was delivered to the mother/respondent in the Court at that very time.

2. Feeling aggrieved thereby the appellant filed petition for leave to appeal in this Court which was granted on 18-10-1994 to consider, inter alia, whether .in the absence of any observation/material indicating that the P' respondent/mother had been illegally deprived of the custody of the minor, section 491, Cr.P.C. was rightly invoked for handing over the custody to the mother?

3. Learned counsel appearing for the parties addressed arguments on the question of the powers of the High Court about invoking section 491, Cr.P.C. in this case. Learned counsel appearing for the appellant argued that petition under section 491, Cr.P.C. was filed after eleven months of the alleged deprivation of custody of the child and although the delay in such cases is very much relevant to the maintainability of petition under section 491, Cr.P.C. yet the High Court did not care to attend to this aspect of the matter. Learned counsel for the respondent contended that in the circumstances of the case that the Talaq was given in December, 1993 which became effective in March, 1994 and in the meantime efforts were being made for reconciliation, the delay on the part of the respondent/mother in approaching the Court against her husband was natural, hence the delay would not operate as a bar in filing a petition. Learned counsel for the parties have cited cases from Indian and Pakistani jurisdiction for and against the proposition.

4. Since after hearing the learned counsel for the parties we feel inclined to set aside the impugned judgment and remand the case for the reason that question of restoration of custody of minor/child under section 491, Cr.P.C. was not considered in its true perspective by the High Court, so we need not go into the merits of the case and discuss the arguments addressed by the counsel for the parties, lest it may prejudice the case of either party before the High Court. We find that, according to the respondent/mother, child was snatched in August, 1993. The first petition under section 491, Cr.P.C. for the recovery of the child was filed in the, Lahore High Court, Rawalpindi Bench, Rawalpindi, on 27-7-1994 i.e., after about eleven months. The delay in filing the petition under section 491, Cr.P.C. was palpable enough to attract the attention of the Court but unfortunately, this aspect of the case was neither urged by the counsel appearing-before the High Court nor the High Court itself considered it. Furthermore, as against the plea of respondent/mother of the deprivation of the child in August, 1993, the plea of the appellant/father in the written statement was that the mother had left the minor with him of her own free will. In view of the conflicting pleas of the parties, the High Court before invoking section 491, Cr.P.C. was obliged to examine the correctness of the stand taken by the parties in order to come to a definite finding as to whether or not the mother was illegally deprived of the custody of the minor in August, 1993?

5. The appeal is accepted. The impugned order/judgment is set aside and the case is remanded to the High Court for fresh decision of the petition under section 491 Cr.P.C. in the light of aforesaid observations. As an interim arrangement, with the consent of the parties, it is directed that the mother wilt leave the child at the house of the father from 8-00 a.m. to 8-00 p.m. on every Friday and Saturday and the father will send back the child to his mother at 8-00 p.m. on both the days. The High Court shall decide this petition within one month from the receipt of this order. N.H.Q./A-1294/S Case remanded.