ZUBA IDA SHEHZADI vs MUHAMMAD ASLAM and anothers

ORDER

' M.A. SHAHID SIDDIQUI, J.---Zubaida Shehzadi petitioner instituted this petition under section 491, Cr.P.C. Against her husband Muhammad Aslam on 19-6-2006 seeking custody of her two minor daughters namely Ayesha and Tayyaba, aged 9 years and 6 1/2 years respectively.

2. Admittedly the petitioner was married to the respondent on 12-9-1996. Ayesha and Tayyaba were born out of the wedlock. It has not been denied that the respondent was already married and had three daughters from his first wife. The petitioner alleged that the respondent had concealed this fact before contracting second marriage with the petitioner. The respondent denied to have made any concealment. He maintained that he had no male issue from his first wife, therefore, he contracted second marriage with a hope that he may be blessed with a male child. The petitioner alleged that the respondent had been treating her with habitual cruelty which resulted into separation between the spouses several times but she had been sent back to the house of the respondent by her mother. On 5-6-2006 she was subjected to physical violence by the respondent and expelled alone from her house on 6-6-2006. In this way she had been denied her right of Hizanat forcibly. In support of this allegation, she had appended a copy of the Medico-legal Certificate, dated 8-6-2006 issued by the Senior Woman Medical Officer, DHQ Hospital, Faisalabad who had observed as many as seven marks of violence on her person.

3. The respondent vehemently denied the allegations. He pleaded that on 6-6-2006 he was at his shop when the petitioner left his house. He has instituted an application for keeping the minors in his custody on 19-6-2006 in the Court of Guardian Judge, Depalpur. He has also filed appeal for restitution of conjugal rights on 3-7-2006.

4. Learned counsel for the petitioner argued that Ayesha and Tayyaba both have not attained puberty and they have been denied their right of being in custody of their mother, as such, this application may be allowed.

5. On the other hand, learned counsel for the respondent argued that the petitioner herself had left the house of the respondent and it is not a case of forcible removal of the minors from the custody of the petitioner, as such, the petitioner cannot be permitted to invoke the jurisdiction of this Court, especially when the matter pertains to the custody of the two minors is sub judice before the Guardian Judge. He further submitted that both the minors at present are studying in a school at Haveli Lakha, District Okara in Class-V and Class-II respectively, as such, their education is likely to suffer in case they are given in the custody of the petitioner.

6. I have considered the arguments put forth by the learned counsel for the parties and have perused the record appended with this petition. There is no dispute that the petitioner is living with her parents separately from her husband. The Medico-legal Certificate of the petitioner, dated 8- 6-2006 prima facie shows that she had been subjected to violence. Both the minors were admittedly enjoying the custody of their mother till 6-6-2006. The petitioner was allegedly expelled by the respondent from his house. Even if it is assumed that she had left the house of her husband it would not make any difference. One thing is certain that she felt compelled to leave the house of her husband alone and in this way both the minor daughters stood deprived of the custody of their mother on June 6, 2006. It would be in the interest of the minors that they should be placed again in the custody of their mother without further loss of time. The mere fact that the respondent has also approached the Guardian Judge on the same day would not prevent the petitioner from approaching this Court under section 491, Cr.P.C. The powers of this Court under section 491, Cr.P.C.

Although different from the powers of a Guardian Judge under the Guardians and Wards Act but there is no question of one excluding the other. I seek guidance from the law laid down in the case of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCM R 1891). In the circumstances of the case, both the minor girls who have admittedly not attained puberty are ordered to be given in the interim custody of the petitioner. The learned Judge Family Judge/Guardian Judge shall finally decide the question of custody of the minors strictly in accordance with law without being influenced by the instant order of this Court. This petition stands disposed of.