1996 SCMR 268 (PLP)

Muhammad Khalil‑ur‑Rchman v. Mst. Shabana Rahman and another PLD 1995 SC 633 and Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891 ref. Azizullah Shaikh, Senior Advocate Supreme Court and Malik Mehr Khan, Advocate‑on‑Rccord for Petitioners. Mrs. Aasma Jehangir, Advocate Supreme Court and MA. Zaidi, Advocate‑on‑Record for Respondent No.l. Date of hearing: 26th November, 1995. SAIDUZZAMAN SIDDIQUI, J.‑‑‑The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of High Court of Sindh dated 5‑6‑1995 whereby Cr. Mist. No.26/95 filed by respondent No.l seeking custody of 2 minor children namely, Maham (daughter) and Nabil (son) was allowed and the custody of children was awarded to respondent No.l subject to final decision of the question of custody of these children ‑in the relevant proceedings under the Guardians and Ward Act. The relevant facts of the case are that petitioner No.l and respondent No.1 were married on 20th of September, 1989. Out of the wedlock two children namely Maham (daughter) and Nabil (son) were born on 12‑5‑1991 and 25‑7‑1993 respectively. The case of respondent No. 1 before the High Court in the petition under section 491, Cr.P.C was, that she was abandoned by petitioner No.1 on 10th of July, 1994 alongwith her children at the residence of her parents. That on or about 8th September, 1994 petitioners Nos.2 and 3 returned from abroad and at that time petitioner No.l gave, a telephonic call to respondent No.1 requesting that the children be sent to his house as the grandparents wanted to meet the children. The respondent No.l contends that, accordingly, she sent the children on 8th of September, 1994 in a car which was sent by petitioner No.l but the children were illegally detained and were not restored to respondent No.l as agreed. The case of petitioner No.l, on the other hand, is that the children were sent by respondent No.l to the house of petitioner No.l at his request for meeting to grandparents on 8th September, 1994 and after two days the children were returned to respondent No.l on loth of September, 1994 but soon thereafter children were again left by respondent No.l at the house of petitioner No.l on the pretext that she was not in a position to take care of the children and it was the responsibility of petitioner No.l. Be that as it may, the petitioner No.l does not deny the fact that from July 1994 when respondent No.l left the house of petitioner No.l, the children were in her custody and that these children were sent to the house of petitioner No.l at the request of petitioner No.l on 8th of September, 1994. The only point in dispute between the parties is, with regard to alleged abandonment of the children at the house of petitioner No.l by respondent No.l voluntarily or the alleged unlawful detention of the children by the petitioners after they were sent to petitioners' home by respondent No.

1. The learned Judge in Chambers while deciding the petition under section 491, Cr.P.C. came to the conclusion that the children were in the custody of the mother (respondent No.l) and that after she sent the children to petitioner No.l on 8th of September, 1994 they were never returned back to respondent No.l and, accordingly, the learned Judge while exercising power under section 491, Cr.P.C. directed that the custody of two minors, who are aged about 4 and 2 years respectively, be restored to respondent No. 1 and that the application under section :5 of the Guardian and Ward Act (hereinafter to be called `the Act' only) filed by petitioner No.l for custody of the children be expeditiously decided by the Family Court. The learned counsel for the petitioners contends that the order passed by the learned Judge‑in‑Chamber under section 491, Cr.P.C. directing handing over of the custody of two minors to respondent No.l, is illegal as the question of custody of children can only be decided by the Guardian Judge, who was already seized of the matter. It is also contended by the petitioners' counsel that petitioner No.l being the father of the two minors, could not be deprived of their custody in proceedings under section 491, Cr.P.C. The petition for leave to appeal is hotly contested by respondent No. 1 who has filed caveat. The learned counsel for respondent No.l on the other hand, contended that the two minors being of very tender ages, the respondent No.l as their mother was entitled to their custody under the law unless she is declared unfit to hold their custody by a competent Court. It is also contended that respondent No.l having been deprived of the custody of minors illegally was rightly restored their custody by the learned Judge‑in‑Chambers in exercise of his power under section 491, Cr.P.C. We have heard the learned counsel for the parties at length. It is true that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of child but this does not mean that in exceptional cases when a person who is holding the custody of a minor lawfully and has been deprived of the custody of minor has no remedy to regain the custody pending adjudication by the Guardian Court. In exceptional cases where the High Court finds that the interest and welfare of minor demanded that the minor be committed immediately to the custody of the person who was lawfully holding the custody of minor before he was deprived of the custody, the Court can pass appropriate order under section 491, Cr.P.C. directing restoration of the custody of minor to that person as an interim measure pending final decision by the Guardian Court. A similar contention was considered by a Bench of this Court in a recent case reported as Muhammad Khalil‑ur‑Rehman v. Mst. Shabana Rehman and another (PLD 1995 SC 633) which was repelled as follows:‑ "The learned counsel attempted to argue that the order passed by the learned Judge‑in‑Chambers on 21‑11‑‑1993 was an order wholly without jurisdiction as the Criminal Court had no jurisdiction under section 491, Cr.P.C. to deal with the question of custody of a minor which is regulated under the provisions of Guardians and Wards Act. The argument is based on misconception. In the case of Muhammad laved Umrao v. Miss Uzma Vahid (1988 SCMR 1891) this Court after reviewing entire case‑law on the subject observed as follows:‑ `The Guardians and Wards Act, as the title itself suggests, deals with the guardians, wards and the problems and ,questions relating to them. Section 7 relates to the appointment of a guardian by the Court and section 12 authorises the Court to make interlocutory order for protection of minor and interim protection of person and property. The two matters, one dealt with by section 491, Cr.P.C. and the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other or the one destroying the other. The law as it stands shows no such repugnancy.' In view of the above observation, it is quite clear that in appropriate cases the Court under section 491, Cr.P.C. if it reaches the conclusion that a minor has been illegally removed from the custody of a person who was holding his custody lawfully, the Court is empowered under section 491, Cr.P.C. notwithstanding the provisions of Guardians and Wards Act to pass appropriate orders. We are, therefore, of the view that the jurisdiction of the Criminal Court is not barred under section 491, Cr.P.C. to pass appropriate order with repaid to. custody of .a minor who has been illegally removed from the custody of a person or: account of the provisions of Guardians and Wards Act." In the case before us, the admitted position in the case is that the two minors in the case were in the custody of respondent No.1 from July 1994 to 8th of September, 1994 when they were sent at the request of petitioner. No. 1 to his house for the purpose of meeting grandparents. The contention of respondent No.1 consistently was that the children were never sent back to !. . after they were dropped at the house of petitioner No. 1 to meet . grandparents, while the petitioner No.1 contended before the learned Judge in‑Chambers that after two days namely, 10th of September, 1994 the children were sent back to respondent No.1 but she voluntarily returned the custody or the children to petitioner No.1 on the plea that the maintenance of children was the responsibility of petitioner No.

1. This latter allegation of petition No. 1 is very vehemently denied by respondent No.l. We have noticed that in, the notice which was served by petitioner's counsel on respondent No.1 of, 19‑11‑1994, it was not alleged that respondent No.1 had voluntarily left tic children at the house of petitioner No.1 after they were returned on 10th of September, 1988 having met with their grandparent. Respondent No.1 in reply to the above notice of petitioner's counsel, through her counsel, vide letter dated 26‑11‑1994 bad raised the plea that after the children were dropped of the house of petitioner No.] at his request to meet the grandparents, the custody of children were never restored to her as promised. Keeping in view the above circumstances and the, fact that the minors arc aged about 4 and years respectively, the order passed by the learned Judge directing restoration of the custody of minors to respondent No.1 who is their mother, cannot be described as arbitrary exercise of the power under section 491, Cr.P.C. We are, however, of the view that the learned Judge while deciding the petition under section 491, Cr.P.C. in which he was only concerned with the question of removal of the minors from the lawful custody of respondent No.1, should have refrained from making any observation with regard to right of petitioner No.1 and the respondent No.1. to the custody of two children as this question was already pending adjudication before the Guardian Court in an application under section 25 of the Act which, we have been informed, was fled by petitioner No. I during pendency of the petition under section 491, CrP.C. We, therefore, clarify here that any observation made by the learned Judge with regard to merits of the claim of petitioner No.l or of respondent No.1 in respect of the custody of two minors shall be ignored by the Guardian Judge while dealing with the application under section 25 of the Act and shall decide the same uninfluenced by the remarks of the learned Judge in the impugned order . We further direct that the application under section 25 of the Act shall be disposed of by the Guardian Judge within a period of 6 months from today. As the custody of minors is to be restored to respondent No.1 in view of the order of the High Court we further direct that the two minors will be left at the house of petitioner No.1 in the morning of every Friday and ‑will be sent back to the house of respondent No.1 in the evening of Saturday pending final decision by the Guardian Judge with regard to custody of two minors in the proceedings under section 25 of the Act. With the above observations and modification in the impugned order, the petition stands disposed of with no order as to costs. N.H.Q./A‑1356/S Order accordingly.