ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. S – 2336 of 2017

Date of hearing

Order with signature of Judge

Hearing of case

For hearing of main case

(Record and proceedings received)

01.02.2019

Mr. Asif Aman, Advocate for the petitioner.

Mr. Saeed Ahmed A. Pawher, Advocate for respondent No.1.

Agha Athar Hussain Pathan, Assistant Advocate General Sindh.

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It appears that the petitioner filed a Suit under the Guardian and Wards Act for custody of the wards. The service was effected and written statement was filed by the respondent / mother Mst. Asima. The issues were framed on 05.05.2015. The affidavit-in-evidence was filed by the petitioner / father on 13.06.2015 and the respondent not only failed to cross-examine him, but also failed to lead her own evidence.

In the absence of such evidence and cross-examination, the custody was ordered to remain with the mother despite serious allegation of the petitioner that the respondent married to a person not within prohibited degree. This is quite alarming.

Counsel, who now represents the respondent, has categorically stated that he is not aware at all of the proceedings of the trial Court and it may be a fact that the applicant / petitioner was not cross-examined and that evidence of the respondent was not recorded. Respondent’s counsel is not willing to assist this Court as to what has happened before the trial Court and appellate Court, however, the record and proceedings were called and the contention of the applicant / petitioner found correct. The order of the trial Court in Guardian and Ward Application No.06 of 2014 is repeated for the convenience, whereby side of the respondent was closed:

“ 4. On the above issues applicant filed affidavit in evidence himself and of his two witnesses then the matter was pending for cross examination of the applicant and of his witnesses but neither the opponent nor her counsel appeared despite the lapse of sufficient time. Vide order dated 20-06-2015 the opponent was debarred from cross examining the applicant and his witnesses and the applicant’s side of evidence was closed and matter was adjourned to 07-08-2015 for the opponent side evidence. Sufficient time and opportunities were given to respondent side to lead her evidence but no evidence was adduced from the opponent side, hence vide order dated 24-08-2015 respondent side was closed and the matter was adjourned and fixed for arguments. ”

In all fairness, the statement recorded on oath should have been taken into consideration by the trial Court and appellate Court. In the absence of evidence of the respondent, written statement alone should not have been considered by the trial Court and appellate Court.

The orders of the trial Court as well as that of the appellate Court are set aside. The case is remanded to the trial Court to decide the matter afresh on the strength of the evidence available on record within one (01) month.

The petition stands disposed of in the above terms.

J U D G E

Abdul Basit