IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. 1669 of 2018

Malik Zohaib…..…………………………….…………….……….….Petitioner

Versus

Province of Sindh and others…………………………………...Respondents

Date of Hearing & Short Order : - 18.09.2018

Mr. Mujtaba Sohail, Advocate for the petitioner

Mr. Abu Bakar Iqbal, Advocate for the respondent No. 4

Mr. Shamsher Khan Azeemi, State Counsel

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: Through the instant petition, the petitioner is seeking direction for production / recovery of minor namely Muhammad Ismail son of the petitioner and also direction to respondents No. 3 & 4 that they should not restrain the visitation of the petitioner with the minor. At the time of issuance of notice, a direction was given to the counsel for the petitioner to satisfy as how the matters regulating the custody of minor be heard in constitutional jurisdiction.

2. The matrix of the case is that the petitioner and respondent No. 3 entered into marital bond and out of that wedlock minor Muhammad Ismail was born. Initially, there was a smooth sailing but by the passage of time the marital life of the couple engulfed under troubles. Ultimately, there was an unhappy ending of marital relationship and parties separated, as the petitioner pronounced divorce to the respondent No. 3. As per petitioner, even after divorce, he was allowed to see minor but after collecting the ‘dowry articles’, the private respondents did not allow the petitioner's visitation to minor. Instead the petitioner filed the instant petition.

3. The learned counsel for the petitioner submits that the marriage was solemnised in Karachi and respondent No. 3 even after divorce used to reside in Karachi but subsequently just to tease the petitioner, she shifted from Karachi to Sahiwal, Punjab. He contends that the instant petition was filed with intention to restrain the respondents not to shift the minors from the jurisdiction of this Court. He submits that a proper guardian and ward application was not filed before the Family Court concerned, because it will be time consuming and the same cannot restrain the respondent No. 3 from shifting to Punjab. He submits that even if the respondent No. 3 is shifted to Sahiwal, Punjab; this Court, being a constitutional court, can entertain the instant petition and issue any appropriate direction to the private respondents as well as official respondents. He submits that it will be troublesome for the petitioner besides the same will be more expensive for him to go to Punjab and initiate any legal proceeding.

4. On the other hand, the learned counsel for responding No. 4 submits that the respondent No. 3 is the maternal niece of respondent No. 4 but the fact is that after pronouncement of divorce, she shifted to Sahiwal, Punjab as the parents of respondent No. 3 are residing there. According to him, the respondent No. 3 is presently residing with her parents and the petitioner is required to approach the Family Court at Sahiwal regarding custody of minor. He submits that at the time of filing of the instant petition, she was already shifted to Sahiwal, Punjab as such the instant petition is not maintainable.

5. The learned DPG opposes the instant petition by submitting that the matter of custody cannot be operated under the constitutional jurisdiction and as per police report, the minor has already been shifted out of the jurisdiction of this Court.

6. I have heard the arguments and have gone through the relevant record. The marriage of the couple was not solemnised in Karachi and the contention of the learned counsel for the petitioner regarding this is contrary to record. The learned counsel is warned to be careful in future in this respect. As far as, the matter of custody is concerned, there will be no cavil that the same cannot be regulated under constitutional jurisdiction and the proper forum for the same is concerned Family Court. It will not be helpful for the petitioner that it may cause difficulty or problem to him to approach a Family Court situated in Sahiwal. It is settled law that the things should be done as the same is required to be done under the law. In these circumstances, I declare that the instant petition is not maintainable, as such is dismissed. However, the petitioner is at liberty to seek appropriate remedy before the proper forum, if he is advised so.

7. The above are the reasons for the short order dated 18-09-2018 through which the instant petition was dismissed.

J U D G E