2003 P Cr (PLP)

Muhammad Akhtar Khan for Respondent No.2. Muhammad Riaz Aura for A.-G. Date of hearing: 24th April, 2003. Through this petition under section 491, Cr.P.C. petitioner sought recovery of her daughters namely Qaisara Maryam aged about 13 years, Bint-e-Maryam aged about 10 years and Iqra Maryam aged about 7 years, from the alleged illegal custody of respondent No.2.

2. The brief facts of the case are that petitioner and respondent No.2 were married with each other and out of this wedlock Qaisara Maryam, aged about 13 years student of 8th Class, Mst. Bint-e-Mariyam aged about 10 years student of 6th Class and Mst. Iqra Maryam aged about 7 years student of 3rd Class, were born and they are studying in Nishat Girls High School, Multan. It is claimed that respondent No.2 is in the habit of contracting marriages and the petitioner apprehends that her elder daughter may be married in exchange as respondent No.2 is interested to marry himself with a lady. Respondent No.2 is working as Assistant Excise and Taxation Officer and is posted at Multan. On 16-2-2003 according to the petitioner at evening time, respondent No.2 visited the house while in the company of dangerous persons forcibly snatched the detenues from the custody of the petitioner and kicked her out of the house, after giving severe beating to the petitioner. The petitioner claims that for the sake of her minor daughters she did not leave the house, but respondent No.2 alongwith his companions forcibly took away the detenues and removed them to some secret place. Petitioner moved an application on 17-2-2003 in the Court of District and Sessions Judge, Multan for effecting the recovery of abovesaid daughters of the petitioner whereupon direction was issued for the production of the children on 19-2-2003. However, on 19-2-2003 order was not complied with as counsel of respondent No.2 appeared before the Court and made statement that respondent No.2 has filed a petition for appointment of guardian of minors in the Court, of learned Senior Civil Judge/Guardian Judge, Khanewal. Respondent No.2 approached the, petitioner and pressurized her to withdraw the petition from the Court so that amicable settlement is arrived at between the parties. The petitioner was unaware of the tricks being played by respondent No. 2 and thus she withdrew the said application because the detenues were also removed from the territorial jurisdiction of Sessions Judge, Multan, hence, this petition before this Court.

3. This Court firstly satisfied itself that this Court can ask for the production of the children even aged about 13, 10 and 7 years and after perusal of the case-law cited by the learned counsel for the petitioner summoned respondent No.2 but on 2-4-2003 nobody entered appearance on behalf of respondent No.2 and telegraphic notice was repeated on the said date. On 15-4-2003 respondent No.2 appeared in this Court and an undertaking was given by him that he will produce all the three daughters on 21-4-2003. On 21-4-2003 he produced all the three daughters in the Court and in order to settle the matter amicably as the divorce was not yet effected, daughters were handed over to petitioner and case was fixed for today i.e. 24-4-2003.

4. Learned counsel for the petitioner contends that petitioner is real mother of the children but the respondent No.2 issued `Chits' for arranging meeting of the petitioner with the children at Khanewal and the children were removed with mala fide intention from District Multan after filing of the application, whereas the application has been moved before the Guardian Judge, Khanewal with mala fide intention in order to restrain the petitioner from taking the children, who in fact were studying in Nishat Girls High School at Multan but now they have not been admitted in any school at Khanewal. It is contended that it is in the interest and welfare of the children to hand over them to petitioner who resides at Multan where the children were studying. Learned counsel for the petitioner relies upon (i) PLD 1997 SC 852, (ii) 1996 SCMR 268, (iii) 1997 MLD 197, (iv) PLJ 2000 Lah. 553, in support of the contention that the petitioner is entitled to the custody of the children whereas remaining of the children with respondent No.2 will not be in the benefit, interest and' welfare of the children and there is possibility that if the children are handed over to respondent No.2, their future/career will be spoiled.

5. On the other hand, learned counsel for respondent No.2 opposes this petition on the ground that respondent No.2 had divorced the petitioner on 29-1-2003 and she herself had left the children in the house of respondent No.2; that an inquiry was conducted on 3-3-2003 by the A.S.-I. in the presence of Nazim Halqa and it was held that she herself had left the children; that respondent No.2 is permanently resident of District Khanewal and his other family members also reside there, besides respondent No.2 has inherited property there, thus he has removed the children there as he was unable to keep the children at Multan. Further contends that case has been filed in the Court of Guardian Judge, Khanewal and due to the pendency of the case before the Guardian Judge, this petition is not maintainable. Further contends that it will be in the interest and welfare of the children that their custody would remain with respondent No.2 whereas the remaining of the children in the company of the petitioner will be harmful and will not be in the interest and welfare of the children. Respondent No.2 also denies the allegations leveled in this petition and prays for the dismissal of the petition.

6. I have heard the learned counsel for both the parties at length Admittedly, petitioner and respondent No.2 married with each other 15 years ago and out of the wedlock three daughters namely Mst. Qaisera Maryam aged about 13 years, Mst. Bint-e-Maryam aged about 10 years and Mst. Iqra Maryam about 7 years were born and they are studying in 8th, 6th and 3rd Class respectively in Nishat Girls High School at Multan but according to the petitioner she was turned out of the house by respondent No.2 and he removed the children from her custody and sent them to Khanewal. Petitioner is real mother of the children and she resides at Multan in her own house. Moreover, all the three daughters have also stated in this court that they want to live with their mother. The respondent No.2 after removal of the children from Multan has not got them admitted in any school and according to him, as he is serving at Multan, he is not in a position to keep them in Multan with him because he has to go on duty and the children cannot be left alone in the house while other family members of respondent No.2 reside at Khanewal.

7. Hence, in the facts and circumstances discussed above, petitioner is entitled to the custody of the children as she is real mother and she is ready and willing to reside with the children in her own house at Multan. In this way study of the children can be continued at Multan. Case-law cited by the learned counsel for the petitioner is applicable to the facts and circumstances of this case, and after perusal of the same custody of the minors is handed over to petitioner. However, respondent No.2 can take the children and keep them with him at Multan in his house weekly from 12-00 noon Friday to 12-00 noon Sunday. This temporary arrangement will continue unless the application filed before the Guardian Judge is decided. However, it is clarified that the finding arrived at by this Court will not prejudice the case of any of the party. Disposed of. H.B.T./M-1971/L Order accordingly.