AZRA BIBI Versus M. RAFIQ

ORDER

Nathey Khan, husband of Azra Bibi is also in attendance and states to have paid a sum of Rs.9,000 as costs of the litigation, which the spouses have earlier remained tagged in. Nathey Khan had sued Azra Bibi for restitution of conjugal rights on 23-1-1991 and had in turn been sued for dissolution of marriage, as also for -recovery of maintenance, by Azra Bibi on 26-3-1991. Under order, dated 21-5-1991, passed by my learned brother, Abdul Majid Tiwna, J. the cases were transferred to the Court of Mr. Abdul Majid, Family Judge, Lahore. The suits however were dismissed, as withdrawn, when the spouses arrived at a compromise.

2. Once again, Nathey Khan has filed a suit for restitution of conjugal rights on 2-1-1994 and the same is pending in the Court of Mian Habib-ur -Rehman, Judge Family Court, Lahore. In the said suit, Nathey Khan had pleaded that the three minor children were living with him, and while replying to para. No.3 of the said suit Azra Bibi had averred that she had forcibly been deprived of her children by her husband. The learned counsel for the respondents rightly points out that this gives a lie to the assertion of Azra Bibi, made in the present petition under section 491, Cr.P.C. to the effect that the children had been snatched away from her on 3-3-1994. They had actually been living with the father since 29-11-1993, and in that regard para. No.10 of the plaint of the suit fon restitution of conjugal rights has been referred to. The plaintiff in the suit, Nathey Khan, has given his address as Kothi Haq Nawaz, Bijli Ghar, Baghbanpura, Lahore, which is the address of the respondents given in the present petition. Hameeda Bibi respondent No.2 is sister of Nathey Khan and Muhammad Rafiq respondent No.l is her husband. The children have been brought from their house.

3. Nathey Khan says, he is driver/conductor, working with Messrs Nazir Inayat Ullah transporter and often remains out of Lahore. He has to spend nights outside. He is suspicious about character and loyalty of his wife, stating that one Mahmood alias Mooda, living in front of his house, in the village in District Sialkot, is carrying on with Azra Bibi, and presently he pays visits even to the house of Azra's mother, to meet Azra, in village Nathey Khalsa, Tehsil Pattoki, District Kasur. Subah alias Shaliqa, aged about 7 years is the daughter, who endorses that Mooda has been coming to the house, day and night, during absence of her father, adding that he has even been seen sharing bed with her mother at night.

4. Still the innocent girl prefers her mother over her father. There are tears in her eyes. She looks towards her father, and then towards her mother, not leaving the arm of her mother, at the same time. This is indeed a moving and pathetic scene, and one feels pity for the innocent children. The girl adds that her Phuphi Hameeda Bibi respondent No.2 is also kind to her, although Hameeda's daughter, who is a couple of years elder to her (Sabah), often falls out with her. That is understandable, for children of almost equal ages do quarrel with each other, while riving together, or during play.

5. I am not in doubt about the fact that the minor children have been removed much earlier and not on 3-3-1994. Normally, remedy for the mother, from whom the children had been removed, or even if she herself had left them behind is to make a petition under section 25, Guardians and Wards Act, and to seek interim custody under section 12. She is said to have already filed such petition, which is pending before a Guardian Judge. This Court however, is not debarred from making an equitable and just order under section 491, Cr.P.C. in the interests of welfare of the minors. Azeem is the youngest child, who is B said to be one year and two months old. He is not having breast-feeding and takes milk through feeder. Still, I think, he is too small and requires care, affection and protection of the mother. Sabah, aged about 7 years, has usual sentimental attachment with the mother and I would not restore her to her father, for the present, although it will be open to the spouses to establish their entitlement to have permanent custody of the children, or some of them, by leading evidence in the Court of Guardian Judge, who will pass a well considered order, in-the light of the evidence led before him. Kabir Nathey Khan is aged about 5 years, and he says he will go with his father, Nathey Khan, who is permitted to take him back. The other two children, Sabah and Muhammad Azeem, shall remain with the mother, for the present and till final C disposal of the petition under the Guardians and Wards Act. A copy of this order may be produced by any party before the Guardian Judge. No further proceedings in the present petition are necessary and the same is disposed of, in these terms.

N.H.Q./A-697/L Order accordingly.