IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Const. Petition No.S-32 of 2022

 

Petitioner                         Muhammad Ashraf son of Jan Muhammad

through Mr. Muhammad Junaid Akram, Advocate.

 

Respondent No.1              Mst. Noor Fatima d/o Rehmat Ali

through Mr. Javed Ali Dhiloo, Advocate. 

 

Respondents 2 & 3           District Judge, Naushero Feroze

Civil/Family Judge-II, Moro

through Mr. Mehboob Ali Wassan, A.A.G.

 

Date of hearing                 26.09.2022

 

Date of order                    14.10.2022

 

<><><><><> 

O R D E R

 

SHAMSUDDIN ABBASI, J:-      In terms of order dated 20.09.2021, the Civil & Family Judge-II, Moro, dismissed the respondent No.1’s Guardian and Wards Application No.17 of 2020 filed under Section 7 and 10 read with Section 25 of Guardian & Wards Act, 1890, seeking custody of minors/wards namely, Sheeraz Ali (son), Sheheryar (son), Isha Farah (daughter) and Muhammad Azan (son) and her appointment as permanent guardian of the said minors/wards for their better welfare, education and Islamic atmosphere in the Society. Against dismissal of her G & W application, the respondent No.1 preferred G & W Appeal No.15 of 2021. The learned District Judge/Civil Model Appellate Court, Naushero Feroze partly allowed the appeal vide judgment and decree dated 08.02.2022 modifying the order of the learned Family Judge. Feeling aggrieved by the judgment and decree passed in appeal, the petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and prayed for following relief(s):-

 

(a)      That, this Hon’ble Court may be pleased to set aside the impugned judgment & Decree dated 08.02.2022, passed by the learned District Judge Naushero Feroze and also upheld the order dated 20.09.2021 passed by the learned Family Judge Moro;

 

(b)     That, this Hon’ble Court may be suspend the operation of the impugned judgment & Decree dated 08.02.2022 passed by the District Judge Naushero Feroze in Guardian Appeal No.15/2021, titled Mst: Noor Fatima Vs Muhammad Ashraf;

 

(c)      That this Honorable Court may be pleased to suspend the search warrant dated 11.02.2022 issued in Crl. Misc. Appl: No.Nil/2022 titled Mst: Noor Fatima Vs. Muhammad Ashraf U/s 100 Cr.P.C. by 2nd Judicial Magistrate/Family Judge Moro; and

 

(d)     To grant any other equitable relief which this Honorable Court deems fit and proper under the facts and circumstances of the case.   

 

2.       Heard and record perused minutely.

 

3.      What emerges from the record is that the respondent No.1 (mother) filed G & W Application No.17 of 2020 seeking custody of three sons and one daughter as well as her appointment as their permanent guardian claiming that welfare of the minors/wards lies with her and she being mother has a right to retain custody of son till the age of seven years and till puberty in case of a daughter. The petitioner contested the G & W application and filed his written statement mainly agitating that respondent No.1 is a woman of low character; she left his house at her own without his consent and secretly obtained Khula. The petitioner has claimed that he owns a cattle farm and financially, morally and socially is in a sound position to that of the respondent No.1, who has no source or privilege to hold custody of minors/wards, therefore, the welfare of the minors/wards lies with him and not with the respondent No.1.

 

4.       The parties led their evidence. The learned Family Judge, Moro, after hearing the parties’ respective counsel, dismissed the G & W application holding that welfare of minors/wards Sheeraz, aged 13 years, Sheheryar, aged 11 years, Isha Farah, aged 09 years and Muhammad Azan, aged 03 years lies with the father and declined their custody to the mother with the following observations:-

 

“No doubt, mothers love and affection towards her children cannot be  replaced whether they are sons or daughters, but it is the “welfare of minor” which is to be given paramount consideration while deciding the matter of custody of minor. In this respect reliance is placed on the case of Mst. Aneela w/v Qari Abdul Majid & 2 others reported as 2000 CLC 320, wherein, it has been held that “In a suit filed under Guardian and Wards Act seeking custody of a ward, the real dispute is not between the spouses but the Court being guardian is duty bound to determine first as to where the welfare of the ward/child lies”. Although it has been an admitted position that the marriage between applicant and respondent stands dissolved by way of Khula but the dissolution of marriage would not disentitle and disqualify her to retain the custody of minor as the paramount consideration and basic criteria for the appointment of guardian and restoration of custody was welfare of the minors. But in the present case, welfare of minors lies with the respondent/father with whom the minors are already residing happily and the minors are also not of tender age in which they required dire need of the mother and minors are well grown up. Further the minors have given preference to their father over the applicant. However, a father cannot be deprived of his right of access to/meeting with the minor”.  

 

 

5.       There is no denial of the fact that marriage between the parties has already been dissolved by way of “Khula” in 2019 and the respondent No.1 (mother) had contracted second marriage with one Muhammad Rafique, which too ended on 17.12.2021 by way of divorce and now she is alone. Per learned counsel for the petitioner, the respondent No.1 (mother) while contracting second marriage loses her right to retain custody of the minors/wards though the said marriage has now come to an end. He further submits that the minors/wards are residing with the petitioner and they have given preference to the father over the mother. No doubt, the petitioner is a real father of the minors/wards and taking care of his children, who are in tender age and need care, company and protection of father, but at the same time the mother has a right of Hizanat and taking pain to seek their custody. The learned appellate Court agreed with the findings recorded by the learned Family Court dismissing G & W application, filed by mother, it only differ the findings to the extent of Muhammad Azan, and allowed his custody to mother as he was only three years of age and the right of Hizanat lies with the respondent No.1 (mother), and, thus, modified the judgment and decree passed by the learned Family Court to that extent only.

 

6.       The entire record is silent as to challenging the judgment and decree passed by the learned appellate Court by the respondent No.1 (mother), which shows her satisfaction over the decision rendered by the learned appellate Court. The petitioner is the only one, who being aggrieved by the order of handing over custody of Muhammad Azan to the respondent No.1 (mother) has taken hectic efforts by running from pillar to post merely to have custody of his son.

 

7.       While deciding the question of custody the paramount consideration is the welfare of the minor irrespective of age, sex, and religion. Primarily, welfare includes his/her moral, spiritual and material wellbeing. While considering what is the welfare of the minor, the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian and the preference of the minor if he or she is intelligent enough to make it. In accomplishment of such object it becomes the duty of the Court to take care of the ward’s welfare and shall ensure that the litigating parents are not disputing to settle their own score or to satisfy vanity or even to soothe his/her craving of love and affection for minor as it could only be done if the welfare of the ward demands. In principle, in the cases, concerning the custody of a child, the Family Court is not required to go into the intricacies/technicalities of the matter and confine its findings to the extent of the welfare of the child/minor, which is a paramount consideration. Primarily, the reasoning assigned by the Family Court to the extent of deciding question of custody is not in accordance with the settled principles because Muhammad Azan (minor) is only three years of age and his welfare lies with the respondent No.1 (mother), who not only has a right of Hizanat, but also entitled to have custody of her three years’ son.

 

8.       This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him/her physically or emotionally by reason of the breakdown of the family tie between the parents. Reliance may well be made to the cases of Mirjam Aberras Lehdeaho v S.H.O., Police Station Chung, Lahore and others (2018 SCMR 427) and Mst. Madiha Younus v Imran Ahmed (2018 SCMR 1991).

 

9.       In view of the analysis and combined study of the entire record as well as applicable law, with care and caution, I am of the view that impugned judgment passed by the learned appellate Court in G & W Appeal No.15 of 2021 is well reasoned, according to law and outcome of a proper application of judicial mind to the facts and circumstances of the case and in accordance with law. Thus, this Court is hesitant to interfere while exercising its constitutional jurisdiction. The instant petition is bereft of any merit stands dismissed and the judgment and decree passed by the learned appellate Court is upheld. As regard visitation schedule of minors with the parents is concerned, the minors would not only need company and guiding hand of the father, but also love and affection, care and attention of the mother. Therefore, negating mother and father of their right to meet the minors would lead to emotional deprivation. The Family Court, is, therefore, directed to arrange meeting of two sons Sheeraz Ali, Sheheryar and a daughter Isha Farah, in custody of petitioner (father) and son Muhammad Azan, in custody of respondent No.1 (mother) as chalked out in its order dated 20.09.2021. It is, however, clarified that the petitioner shall be free to seek custody of Muhammad Azan till he attains the age of seven years, if he is desired so.  

 

10.     The Constitution Petition No.S-32 of 2022 stands disposed of in the foregoing terms.

 

 

JUDGE