Mst. GHULAM FATIMA vs THE STATE and 2 otherss

ORDER

' IJAZ AHMAD CHAUDHRY, J.---This revision petition under sections 435/ 439, Cr.P.C. Has been tiled against the order dated 17-5-2005 passed by learned Sessions Judge, Lodhran through which application regarding custody of the daughter of the petitioner namely Mst. Salma aged about 10/11 years has been dismissed.

2. The brief facts of the case are that petitioner was married with respondent No.3 about 25/30 years ago and out of the wedlock three daughters and one son were born. The petitioner claims that she owned landed property which she inherited from her father. Respondent No.3 was exerting pressure upon her to transfer the land in his name which was refused by the petitioner and due to this reason respondent No.3 was bent upon to commit fraud to sell the property of the petitioner to third person. The petitioner raised protest against this and insisted for return of her land whereupon respondent No.3 turned her out of his house along with five children. Consequently, the petitioner filed a suit for the recovery of maintenance while the respondent No.3 in response to the said suit also filed petition for the custody of the children. The learned Family Judge had decreed the suit for maintenance in the year 1994. Then respondent No.3 approached the petitioner and the matter was patched up between the parties before the learned Guardian Judge on 12-9-1995.

3. But subsequently, the petitioner was turned out by respondent No.3 who also contracted second marriage and transferred the house in the name of second wife. Due to this, the petitioner came to the house of her brother and for six years respondent No.3 had not provided a single penny to the petitioner as maintenance. The petitioner and her children filed a suit for maintenance and respondent No.3 was summoned for 17-5-2005, who in order to defeat the ends of justice kidnapped Mst. Salma aged about 10/11 years from the school studying in class 5th. However, the matter was not reported to the police and the petitioner moved an application under section 491, Cr.P.C. For the recovery of her minor daughter which has been dismissed.

4. Learned counsel for the petitioner contends that this Court under section 491, Cr.P.C. Has vast powers to hand over the custody of the minor after her recovery from her father to the petitioner being mother. It is further contended that technicalities cannot come in the way of handing over of the minor to the mother as the mother has preferential right of custody. Relies upon the following case-law:--

(i) PLD 2004 Supreme Court 1;

(ii) PLD 1997 Supreme 852; Court

(iii) 1984 PCr.LJ 2582;

(iv) 1991 PCr.LJ 2372;

(v) 2004 SCM R 990;

(vi) 1991 PCr.LJ 758;

(vii) 1991 M LD 1395;

(viii) 1984 PCr.LJ 1047;

(ix) 1988 SCM R 1891; and

(x) 1988 PCr.LJ 1883..

5. I have heard the learned counsel for the petitioner and also perused the contents of this petition as well as the order of the learned Sessions Judge. It is admitted fact that Muhammad Ramzan respondent No.3 had moved petition for custody of children in the year 1995 before the learned Guardian Judge, Lodhran and the petitioner was summoned. On 12-9-1995, both the parties and their counsel appeared in the Court and got recorded statements to the effect that through a family settlement the children were handed over to respondent No.3 and the petition was dismissed as withdrawn having borne fruit. The story narrated by the petitioner claiming the age of Mst. Salma to be 10/11 years is belied from the contents of the petition filed by respondent No.3 for custody of children on 10-10-1994, wherein her age at that time was recorded as 7 years, who now can be about 18 years of age. It also creates doubt in the petitioner's version that now she was studying in 5th class only and was abducted by her father/respondent No.3 forcibly after closing of school. The custody of the major daughter in the above circumstances with respondent No.3 being father cannot be declared illegal and improper.

6. The learned Sessions Judge has rightly dismissed the application of the petitioner on valid reasons and the petitioner has an alternate remedy by filing petition under section 25 of the Guardians and Wards Act, 1890 and the Guardian Court is also competent to order for interim custody of daughter of the parties under section 12 of the Act till final disposal of the petition, if feels appropriate. The case-law cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case because in all the cited judgments the jurisdiction was exercised keeping in view the minor age of the children while in the present case the alleged detenue from the material available on the file prima facie proves to be major and story narrated by the petitioner regarding her forcible abduction by the father/respondent No.3 seems to be doubtful. The learned counsel for the petitioner has failed to C point out any illegality or jurisdictional defect in the impugned order passed by the learned Sessions Judge, which is maintained and this revision petition being devoid of any merit is dismissed in limine.

6. However, the petitioner can approach the learned Guardian Judge for the custody of her daughter by filing petition under section 25 of the Guardians and Wards Act, if so advised, which will be decided on its own merits without being influenced by the order passed by this Court or the learned Sessions Judge.

Revision .