Order Sheet
IN THE HIGH COURT
OF SINDH, BENCH AT SUKKUR
Constitution Petition No. S – 51 of 2019
[Muhammad
Paryal Gilal v. Atta Muhammad]
Applicant : Muhammad Paryal Gilal and another through Mr. Jamshed Ahmed Faiz,
Advocate.
Respondent
No. 1: Atta Muhammad through Mr.
Nusrat Hussain G. Memon, Advocate.
Respondent
No.4 : Province
of Sindh through Mr. Ahmed Ali Shahani,
A.A.G.
Date of hearing : 15-09-2020
Date of order : 14-10-2020
O R D E R
Adnan
Iqbal Chaudhry J. – G&W Application No. 09/2017 filed by the
Respondent No.1 (father) for custody of his daughter from the Petitioners, the
maternal uncles (mamu) of the minor, was
allowed by the Family Judge Moro by judgment and decree dated 10.10.2018. Family
Appeal No. 34/2018 filed by the Petitioners was dismissed by judgment and
decree dated 08-01-2019; hence this petition by them. By order dated 18-02-2019,
this Court had stayed execution of the judgment and decree.
2. It was the case of the Respondent No.1
that after the death of his wife in 2016 (the minor’s mother) when the minor
was 9/10 years of age, the Petitioners, who were the brothers of his wife, took
away the minor by force. The Respondent No.1 pleaded that as father of the
minor he was natural guardian; that he had not re-married; and that he was in a
better position to fulfill the needs of the minor as he had done so for his two
elder daughters.
3. On the other hand, it was the case of
Petitioners that the Respondent No.1 had divorced his wife (the Petitioners’
sister and the minor’s mother) in the year 2006 and had turned her out of his
house along with the minor when she was a suckling; that ever since, the minor
and her mother resided with the Petitioners and were looked after by the
Petitioners without any maintenance from the Respondent No.1; that the
Respondent No.1 had never enquired about his daughter; that in 2016 when her
mother died, the minor was of 12 years of age, and now when she does not
recognize the Respondent No.1 as her father, it would be in her best interest
to continue living with the Petitioners.
4. The Courts below granted custody to the
Respondent No.1 essentially on the ground that after the demise of the minor’s
mother, the Respondent No.1 as father and natural guardian had a preferential right
to custody; and that he was not otherwise disqualified from giving the required
care to the minor.
5. Heard the learned counsel and perused
the record.
6. That the Respondent No.1 had divorced
his wife in the year 2006, was a fact admitted by him on cross-examination. The
evidence suggests that in 2006 the minor was around one or two years of age and
has ever since been living with the Petitioners and their family. The averment
of the Petitioners that they have been attending to the needs and education of
the minor was also acknowledged by the minor herself who was examined by the
Family Judge on 30-08-2018. Her deposition stated her age as 13/14 years and
her examination showed that she clearly understood the situation. She categorically
stated that she did not recognize her father and wanted to continue to live
with the Petitioners. This part of the evidence was not adverted to by the
Courts below and resultantly both the Courts below did not take into account
sub-section (3) of section 17 of the Guardians and Wards Act, 1890 which
provides that amongst matters to be considered by the Court in appointing a
guardian, the Court may also consider the preference of the minor if he/she is
old enough to form an intelligent preference.
7. In Khan Muhammad v. Surayya Bibi
(2008 SCMR 480) it was observed that the right of the father to custody as
natural guardian is subject to the welfare of the minor which is always the
paramount consideration. On the same principle, the Honourable Supreme Court in
the case of Nighat Firdous v. Khadim Hussain (1998 SCMR 1593) allowed
the appeal of the minor’s maternal aunt to allow her to retain custody of the
minor against the father in circumstances where the minor had been raised by
the aunt after the death of the minor’s mother.
8. Going by her age mentioned in her
deposition, the minor is now 15/16 years of age. She was present before this
Court at the time of hearing and appeared to be of such age or thereabouts. She
refused to go live with her father and reiterated that she wanted to continue
to live with the Petitioners and their family who had raised her and were
attending to her welfare. The Petitioners, who are the brothers of the minor’s
deceased mother (mamu), stand within the prohibited degree of
relationship with the minor, and thus are not otherwise disqualified from her custody.[1]
For the time being, there is nothing to
show that the welfare of the minor lies elsewhere. In the circumstances of the
case, there is no reason to decline the minor’s preference. Therefore, this
petition is allowed. The judgments and decrees passed by the Family Judge Moro
in G&W Application No. 09/2017 and by the Additional District Judge Moro in
Family Appeal No. 34/2018 are set-aside, and G&W Application No. 09/2017 is
dismissed. However, this order shall not disentitle the Respondent No.1 to visit
his daughter subject to such terms and conditions as may be determined by the Family
Judge upon an application being moved in that regard by the Respondent No.1.
J U D G E