IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

C.P No. S-827 of 2019

 

 

Petitioners                      Mst. Tahmina Ansari,  

                                      Through Mr. Abdul Rehman Bhutto, Advocate.

Respondent No.1.           Rafique Ahmed @ Gulzar Lakho(Called absent) .

P.O Sindh & others.       Through Mr. Abdul Hamid Bhurgri, Additional Advocate General.

 

Date of hearing              12-10-2020

Date of decision              29 -10-2020

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JUDGMENT

ZULFIQAR ALI SANGI, J.     Through the instant petition, the petitioner has challenged the order dated 30.09.2019, passed by Civil and Family Judge, Lakhi Ghulam Shah, and the judgment and decree dated 20.11.2019, passed by learned 3^rd Additional District Judge/MCAC, Shikarpur.

2.       Brief facts of the instant petition are that respondent No.1 filed Guardianship Application No.01/2019 under section 25 of the Guardian and Wards Act, 1890, against the petitioner, wherein he asserted that the marriage of petitioner and respondent No.1 was solemnized on 04.04.2008. From such wedlock, they gave birth to minors, namely, Sakina Batol aged about 10 years, Bakir Ali aged about 10 years, Basit Ali aged about 6 years, and Muqadas Fatima aged about 5 years, who were residing with the petitioner. He used to make payment of their maintenance on each and every month regularly and came to know that his wife was misusing the said amount and was not spending said money for the betterment of minors. It was further alleged that respondent No.1 divorced the petitioner on 04.04.2017, then the respondent No.1 was maintaining the minors since their birth and he is interested in taking their custody as he is the natural guardian and has the right to supervise the children. It was further alleged that the respondent No.1 has a good reputation in his vicinity, he belonged to a well educated and civilized family and he has deepest love and affection for the children, therefore, he has not contracted second marriage, whereas the petitioner is jobless and source-less lady and sometimes she behaved like a psycho patient, alleging as above respondent No.1 filed Guardianship application before the Civil Judge and Family Court Lakhi Ghulam Shah with the following prayers:-

a)                    To direct the respondent to handover the custody of minors to the applicant, who is father of minors, the applicant being father of minors is in a position to well maintain them and it is the paramount interest of minors that their permanent custody be handed over to him, as the welfare of the minors lies with the applicant.

b)                    To award the cost of the suit.

c)                     To grant any other equitable relief, which the court may be deemed fit and proper under the circumstances of the case.

 

3.                The petitioner upon notice of the family court, appeared and denied the allegations, both the parties led their evidence, after assessment of the evidence learned Civil and Family Judge Lakhi Ghulam Shah allowed the guardianship application to the extent of handing over the custody of two male children to the respondent No.1 and two minor female children to the petitioner, vide impugned order dated 30.09.2019. The petitioner preferred Guardianship/Family Appeal before the learned appellate court, which was dismissed vide impugned judgment and decree dated 20.11.2019, hence she has filed the instant petition.

4.                Learned counsel for the petitioner submits that learned Civil/Family Judge, Lakhi Ghulam Shah has committed illegality and irregularity while partly allowing the guardianship application filed by the respondent No.1, whereby the custody of two boys was handed over to the respondent No.1 and custody of two girls was handed over to the petitioner; that the petitioner is a natural guardian of the boys; that petitioner and respondent No.1 are residing in the same street and the children are visiting the house of petitioner and respondent No.1 without any hindrance; that the welfare of the children is with their mother (petitioner); that evidence produced by the petitioner was not considered by the family court so also the Appellate Court; that children are not happy with their father and only the petitioner being their mother can look after them properly. Lastly he prayed that this petition may be allowed and order dated 30.09.2019 passed by Civil and Family Judge Lakhi Ghulam Shah and Judgment dated 20.11.2019 passed by IIIrd Additional Sessions Judge/Model Civil Appellate Court, Shikarpur may be set-aside.

5.                On the other hand, Mr. Abdul Hamid Bhurgri learned Additional Advocate General Sindh supported the impugned order passed by Family Court, and the judgment passed by Appellate Court by stating that the same are passed after proper assessment of evidence and prayed that petition may be dismissed.

6.                None appeared on behalf of the respondent No.1.

7.                I have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.

8.                Record reflects that during the trial respondent No.1 himself was examined and produced Shafique Ahmed as his witness, whereas the petitioner was also examined and produced Nazeer Ahmed as her witness and thereafter by appreciating the evidence, the trial court decided/partly allowed the application in favour of respondent No:1 which order, on assailing in appeal, also stood maintained.

 

9.                I would take liberty in reiterating established legal principle, so enunciated by Apex Court, in matters of custody of minor (s) that welfare of the minor shall always be the paramount consideration rather a decisive factor, however, the poverty of lady alone would not be sufficient to hold her disentitled for custody of minor as legally the burden to maintain the child lies on father. (Mst. Razia Bibi v. Riaz Ahmed & another (2004 SCMR 821). In a recent judgment the honourable Apex Court in the case of Mst. Mubeena v. Raja Muhammad & another PLD 2020 SC 508 while reaffirming the legal position of any agreement between parents over custody as invalid went on in holding that even physical disability of mother would not be sufficient to hold her disentitled from the custody of the child. The operative part reads as:-

                                      “11.      The principles of Policy (the Principles’) set out in the Constitution is the path, and the destination, that the nation has set for itself. The Principles require that, ‘Steps shall be taken to ensure full participation of women in all spheres of national life’. If women with physical life stand excluded from participation in family life and excluded from the much higher proclaimed objective of participation in all spheres of national life. The Principles also require that the State shall protect ‘the mother and the child’. If child is taken away from the mother, deprived of her love and benefit of her upbringing the mother and the child’s relationship is fragmented.”

 

10.              I would further add that a legitimate child can’t come to existence without parents therefore love, affection, and care of both the parents is, always, in the best interest of the child and his (child’s) growth, therefore, a balance is always to be maintained while making decision in the matter (s) of custody of the minor. I would also add that the law does recognize the right of Hizanat which itself is an indication of the fact that in matters of custody of the child with reference to gender the age of child matters. This, being the rule of Muslim Law itself, needs to be given weight unless the circumstance otherwise makes applicability thereof as against the welfare of the minor. All these aspect (s) are always to be appreciated while making a decision on the question of fitness of parents for custody of the child.

                   Having said so, it would be conducive to refer the operative part of the findings of the trial court in the impugned order which are as under:-

“Upshot of my above discussion is that the welfare of minor boys is with applicant/father; while welfare of minor girls is with respondent/mother. The applicant is entitled for custody of minor boys only; while minor girls shall remain into custody of respondent/mother. That during both Eid festivals, the minor boys will live with father on 1^st day of Eid festival; while on second day of Eid festivals, the applicant/father would hand over the custody of minor boys to mother. Such schedule is also applicable to mother/respondent in respect of minor girls. During summer vacations and winter holidays, the first half of holidays minor boys would live with applicant; while second half would reside with mother. The minor girls may also reside with mother in first half of summer vacation and winter holidays; while second half minors would reside with father. The applicant and respondent may provide access of meeting to each other on fortnightly basis as per given schedule, the applicant should hand over the minor boys to respondent at 09-00 am and take over at 05-00 pm on each alternative Saturday for meeting purposes. The respondent shall hand over minor girls to applicant at 09-00 am and take over at 05-00 pm on each alternative Saturday for meeting purpose. Issue decided accordingly”.

11.              Prima facie, the manner in which the trial court has found both the parents entitled for custody of minor children is itself sufficient that both parents are fit for custody of minor (s) hence, prima facie, the decisive factor was that of Hizanat because of which the custody of male-children have been given to father while that of female-children has been given to mother. Such order of the learned trial court has also been maintained. I am conscious that ‘rules of personal law are subservient to the welfare of the minor’ (Firdous Iqbal v. Shafaat Ali and others (2000 SCMR 838) but this principle itself speaks that a departure thereto would come into play when the welfare of minor is likely to prejudice because of fitness of a parent. In the instant matter, the remaining of the child with any of the parents is not likely to prejudice the welfare of the minor which fact, even, is reiterated by the counsel for the petitioner in the following words:-

“Petitioner and respondent No.1 are residing in the same street and the children are visiting the house of petitioner and respondent No.1 without any hindrance”

If the position is so then the petitioner is not legally justified to question the remaining of the male-children with a father who, per right of hizanat, is entitled for such custody of the male children. It is pointed out that due to love and affection with the minors the respondent has not contracted second marriage; no any complaint was made by the minors before the appellate court or before this court regarding the non-maintenance by their father. In addition to this, there has been provided a complete mechanism by the two court (s) below for assuring the love and company of both parents on the special occasions.

12.              In view of the above, the impugned order dated 30.09.2019 passed by the Civil/Family Judge Lakhi Ghulam Shah in Guardian and Wards Case No.01/2019 and the judgment dated 20.11.2019, passed by the III-Additional District Judge, Shikarpur in Family Appeal No. 18 of 2019 are maintained whilst dismissing the instant petition.

 

13.              The petition is disposed of in the above terms.

 

 

                                                                                     Judge