Order Sheet

 

IN THE HIGH COURT OF SINDH AT KARACHI

 

Constitutional Petition No. S – 285 of 2017

 

Date

                                Order with signature of Judge

 

Hearing / Priority :

1. For hearing of CMA No.8620/2017 :

2. For hearing of Main Case :

 

19.02.2019 :      M/S Khawaja Naveed Ahmed and Irfan Bhutta,

advocates for the petitioner a/w petitioner Mst. Noor Afshan

(CNIC No.42401-4414382-0) and minor Maaz Ali.

…………

 

NADEEM AKHTAR, J. – G & W Application No.892/2015 filed by respondent No.1 / father against the petitioner / mother in respect of their minor son Maaz proceeded ex-parte against the petitioner and was eventually disposed of by the learned Family Court vide ex-parte order dated 18.05.2016 in the following terms :

 

“15.     Seeking guidance from the above mentioned case law and for the above reasons and discussion, I am of the view that disturbing the custody of minor at this stage would not be in the welfare of minor, as the same may disturb him mentally and physically which can ultimately cause loss in his educational life and as already discussed above, the conduct of applicant appears to be negligent and malafide therefore the application for permanent custody of minor does not merit consideration at this stage. However the applicant being the real father has every right to meet his minor child, therefore following visitation rights are allowed to the applicant / father of minor :

 

i.          The respondent shall produce minor before this Court for the purpose of his meeting with the applicant on every 2nd and 4th Saturday of every month from 10:00 a.m. to 01:00 a.m.(!) for which the applicant shall pay Rs.500/- as conveyance charges for each meeting to the respondent side.

           

ii.         The respondent shall handover the custody of minor to the applicant for one week during his winter vacation, subject to submission of original CNIC, passport and execution of PR bond in the sum of Rs.500,000/- by the applicant before taking custody of child, for not removing the minor child from the jurisdiction of this Court. On completion of required conditions by applicant, office shall issue letter of such permission in favour of the applicant.

 

iii.        The respondent shall handover the custody of minor to the applicant for two weeks in summer vacation, i.e. one week in each month, subject to submission of original CNIC, passport and execution PR bond in the sum of Rs.500,000/- by the applicant before taking custody of child, for not removing the minor child from the jurisdiction of this Court. On completion of required conditions by applicant, office shall issue letter of such permission in favour of the applicant.

 

iv.        The respondent shall handover the custody of minor to the applicant on 02nd day of Eid-ul-Fitr and Eid-ul-Azha from 10:00 a.m. to 06:00 p.m. subject to submission of original CNIC, passport and execution of PR bond in the sum of Rs.500,000/- by the applicant before taking custody of child, for not removing the minor child from the jurisdiction of this Court. On complete of required conditions by applicant, office shall issue letter of such permission in favour of the applicant.

 

16.       On all occasions as mentioned in paras No.ii to iv, the applicant shall pick the minor from the house of respondent and shall drop him back.”

 

            As respondent No.1 was not satisfied with the above order, he filed Family Appeal No.29/2016 which was allowed by the learned appellate Court vide judgment dated 18.01.2017, whereby the above order passed by the learned Family Court was set aside and permanent custody of the minor was granted to respondent No.1. The said order of the learned appellate Court has been impugned in the present petition by the petitioner / mother. Respondent No.1 is being represented in this petition by a counsel, but he as well as his counsel were absent on the last date of hearing and same is the position today. On the last date of hearing, it was observed that if none appears for him on the next date, the matter shall be heard and decided in his absence. Despite the above, no one is present on his behalf to assist the Court although the matter has been called twice since morning.

 

            It is contended by learned counsel for the petitioner that respondent No.1 is not interested in meeting the minor or to have his custody as he has remained absent on all the dates of meeting scheduled in pursuance of the order passed by the learned Family Court. He has placed on record certified copy of the diary sheet of the learned Family Court in G & W Application No.892/2015 which supports his above contention. It is further contended by him that in Family Execution No.15/2016 arising out of Family Suit No.1728/2012 filed by the present petitioner and the subject minor against respondent No.1 for recovery of maintenance etc., CNIC No.13503-0676073-5 of respondent No.1 has been “digitally impounded / blocked” by NADRA in compliance of the order passed by the learned Family Court ; and, in Case No.4518/2017 non-bailable warrants of arrest have been issued against him by learned VIth Judicial Magistrate Karachi South. In support of this contention, he has placed on record copies of the compliance report submitted by NADRA before the Family Court and non-bailable warrants issued against respondent No.1 by the Judicial Magistrate. Learned counsel submits that in view of the above, respondent No.1 is not fit to have custody of the minor, whether temporary or permanent, and in fact he has forfeited such right in respect of the minor. He further submits that even otherwise the impugned judgment granting permanent custody of the minor to respondent No.1 is arbitrary, illogical, illegal and not at all in the welfare of the minor who is of tender age.

 

            I have carefully examined the order passed by the learned Family Court and the impugned judgment delivered by the learned appellate Court, and have also considered the submissions made on behalf of the petitioner. The learned Family Court had taken into consideration all the relevant and important aspects of the case and more importantly the welfare of the minor while deciding the schedule of visitation / temporary custody. It may be noted that the conduct of respondent No.1 was noticed by the learned Family Court by observing that it appeared to be negligent and malafide. Whereas, the learned appellate Court granted permanent custody of the minor to respondent No.1 on the sole ground that the petitioner has remarried and is now living with her second husband. In my humble opinion such ground could not be applied in the present case and the same could have been applied had the subject minor been a girl. Except for the above, no other justifiable reason has been assigned by the learned appellate Court for granting permanent custody of a male minor of tender age to his father / respondent No.1. The observation of the learned Family Court regarding the conduct of respondent No.1 being negligent and malafide, prima facie, is still apparent in view of his continuous absence at the time of meetings ordered by the learned Family Court, the impounding and blocking of his CNIC by the learned Family Court and issuance of non-bailable warrants against him by the learned Judicial Magistrate. Respondent No.1 has also not complied with the decree of maintenance passed by the learned Family Court in favour of the subject minor. In these circumstances, grant of permanent custody of the minor to respondent No.1 will not be in the interest and welfare of the minor. However, he cannot be deprived of his right of visitation.

 

            In view of the above, the impugned judgment is hereby set aside and order dated 18.05.2016 passed by the learned Family Court in G & W Application No.892/2015 is hereby upheld / restored ; however, subject to the condition that the same shall not be implemented unless respondent No.1 appears in person before the learned Family Court along with his written undertaking and supporting material and satisfies the learned Family Court that he has been acquitted in the above mentioned criminal proceedings and has satisfied the decree of maintenance passed against him in Family Suit No.1728/2012 filed by the subject minor and the petitioner.

 

This petition is allowed in the above terms with no order as to costs and the listed application stands disposed of accordingly.

 

     J U D G E