IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

 

C. P No. S-289 of 2024

 

Petitioner

 

Akhtar Aziz Abbas

 

 

Through Mr Abdul Samad Memon, Advocate

 

Respondent No.1

 

Mst. Erum d/o Abdul Ghani Bhutto

 

 

Through Mr. Aandal Khan Narejo, Advocate

 

 

 

Date of hearing

 

12-09-2024

 

Date of order

 

 

12-09-2024

 

O R D E R

 

 

KHADIM HUSSAIN SOOMRO, J.-Through this petition, the petitioner seeks custody of the minor, namely Ali Moosa Aziz, from respondent No.1.

 

2.                          The brief facts of the petition are that the petitioner contracted marriage with respondent No.1 in 2011. After Rukhsati, the attitude of respondent No.1 was very harsh with the petitioner and his family without any reason; therefore, in the year 2012 respondent No.1 left the house of the petitioner and started residing with her parents. Respondent No.1 gave birth to one boy, Ali Moosa Aziz, on 03.08.2013 at her maternal home. She continued residing there and did not join the petitioner. The petitioner has borne all the delivery expenses of respondent No.1 and has regularly provided all the basic needs of the minor since his birth up to 2023. The petitioner thereafter approached and sent the maintenance amount by hand to respondent No.1, who did not receive it. Hence, the petitioner has approached this court to get custody of his minor son.

3.                          At the very outset, learned counsel for the petitioner submits that the petitioner contracted marriage with respondent No.1 in the year 2011; however, due to certain reasons, he pronounced three divorces to her, that the detainee was born on 02.08.2013. He further submits that since the birth of the minor, the petitioner has been paying the maintenance to respondent No.1; that respondent No.1 has contracted a second marriage; hence, she has lost the right of hizanat. Counsel argues that the petitioner, being a natural guardian, is entitled to the custody of the minor. He lastly argued that the minor was not properly upkeep by respondent No.1; apart from that, the minor was deprived of natural love and affection. He has a reasonable apprehension that the future of the detainee shall be destroyed.

4.                          On the other hand, the learned counsel for respondent No. 1 contends that the petitioner pronounced divorce to respondent No. 1 on January 27, 2015. Since the birth of the minor, respondent No. 1 has maintained continuous custody of the child, and she is a primary school teacher who provides for the minor's maintenance, education, and even religious teachings. She is also contributing Rs. 10,000 per month for the welfare and future of the minor, having deposited a total of Rs. 291,200 in that account. The counsel further asserts that the petitioner has failed to deposit any maintenance payments for the minor into respondent No. 1's account for the past two years.

5.                          I have heard learned counsel for the parties and perused the material available on record.

6.                          The honourable Supreme Court of Pakistan has consistently observed in its various judgments, including the cases of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMIR 1891), Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852), Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1), and Naziha Ghazali v. The State and another (2001 SCMR 1782) that issues regarding the custody of minor children may be presented before a High Court only if the children are of very tender ages, have recently been unlawfully taken from lawful custody, and there exists a genuine urgency. Furthermore, in such cases, the High Court may only regulate interim custody while deferring final custody determination to a Guardian Judge. The honourable apex court has repeatedly emphasized that the jurisdiction of the High Court under the writ of habeas corpus should be exercised sparingly, limited to exceptional and extraordinary circumstances of genuine urgency, acknowledging that a Guardian Judge possesses the necessary authority to recover minor children and regulate their interim custody.

7.                          In the present case, the petitioner's child is neither of very tender age nor has he been unlawfully taken from the petitioner; therefore, the petitioner's petition is unsustainable. The age of minor Ali Mosa Aaziz is about 11 years, and the custody of the minor has been with respondent no 1 since his birth. However, the dispute between the petitioner and private respondent No. 1 arose, leading them towards marriage dissolution. Consequently, respondent no 1 filed a guardianship application, which was allowed on the basis of no objection from the petitioner. Respondent no 1 is a government school teacher, and she has been depositing Rs 10000/ per month in the minor's account for a better future. 

 

8.                          Consequently, and in view of the above, the petitioner's case does not come within the ambit of the principles laid down by the apex court of Pakistan in the above-cited case laws. Accordingly, this petition is dismissed; however, the petitioner is at liberty to file a guardianship application before the court of competent jurisdiction.

 

 

9.                          Needless to mention here the observations made hereinabove are tentative innature and would not prejudice the case of either party in the Guardian Wards Court while deciding the case on merits.

 

J U D G E

 

Abdul Salam/P.A