O R D E R S H E E T
IN THE HIGH COURT OF SINDH, KARACHI
C.P. No.38 of 2006
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DATE ORDER WITH SIGNATURE OF JUDGE
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Mr. Ch. A. Rashid, Advocate for the Petitioner.
Mr. Muhammad Jamil, Advocate for Respondent No.1.
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This constitutional petition is directed against the judgement dated 24.12.2005 passed by Additional District Judge No.3, Karachi East, in family appeal No.33/2005, whereby the said appeal stands dismissed (which was filed by the petitioner against the order dated 16.03.2005 passed by the Family Judge No.1, Karachi East in Guardian & Ward application bearing No.1579/2001) wherein the petitioner plaintiff had prayed for the custody of his minor son namely Umer Hayat Ahmed Sharif.
2. Heard the learned counsel for the contesting parties.
3. Petitioner/plaintiff filed the above stated Guardian and Ward Application bearing No.1579/2001 stating therein that respondent Dr. Shirin Qasim was married to him on 24.01.1999 at Karachi and the said minor namely Umair Hayat Ahmed Sharif was born on 25.10.1999 at Karachi out of the said wedlock. Plaintiff was offered a good job in the USA, but he kept on postponing his departure for USA till the said son was born whereafter he proceeded to there; it was alleged that respondent ill-treated the parents of the plaintiff/petitioner and even did not allow them to meet the said minor son despite best efforts from their side to meet and to see him.
4. Ultimately the respondent filed suit for dissolution of marriage bearing No.835/2001 in the Family Court Karachi East, which now admittedly stands decreed on the ground of Khula and the marriage in between the parties stands dissolved accordingly.
5. The ground for seeking the custody of the minor is that the defendant/respondent remains busy throughout the day with her job and would not be able to pay due attention to the child for his proper up-bringing and leaves him with the old parents; when she herself goes to attend to her job her parents are not in a position to look-after the child effectively, whereas the plaintiff/petitioner with his family would provide much better conducive and free atmosphere to bring him up and make his personality grow positively; hence the prayer made in the said application is for the custody of the said minor or in the alternative to allow the plaintiff petitioner to keep the child with himself atleast two days in a week.
6. The respondent defendant contested the said application by filing the written statement wherein she narrated her own grievances against the petitioner. The trial Court framed the following issues:-
1) With whom the welfare of the minor lies?
2) What should the order be?
7. Parties produced their respective evidence whereafter the family Court dismissed the said application with the following observations:-
“Mr. Choudhry Abdul Rasheed learned counsel for the petitioner has contended that petitioner is highly educated person being consultant neurologist, he is financially strong in his absence his mother can look after the minor and it is in the welfare of the minor if the custody is given to the petitioner. On the other hand, Mr. Javed Rajput the learned counsel for the respondent has contended that minor is aged only 6 years old and respondent is entitled for his custody. More so, that petitioner has failed to bring anything on record, which could prove that the respondent is not entitled for to have the custody of the minor at this stage.
The legal position of the case is that minor is aged less than seven years and under the law respondent being mother of the minor is entitled to his custody, and in this situation, the petitioner had to prove a very strong case for depriving the respondent mother from her legal right and the minor from the love and affection of his real mother for which there can be no substitute. It would be appropriate to refer to Section 352 of Muhammadan Law, which reads as follows:-
‘The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child(e), unless she marries a second husband in which case the custody belongs to the father(I).’
It is settled law that welfare of the minor lies where the right of custody lies unless there is any strong evidence on record, which establishes that such person has neglected grossly in taking care of the minor or the mother is leading a life which is prejudicial to the interest, welfare and upbringing of the minor. In this case mother has not got second marriage and there is nothing on record, which could adversely speak about her character. Petitioner has tried to put up a case that the respondent is a doctor by profession and some time she has to remain on duty for more than 24 hours and during this time minor is at the mercy of strangers. Respondent has denied that she remain on duty for long time. I however do not believe her. It is a fact of common knowledge that some time the doctors working in government hospital have to perform duties for 24 hours or even more in case of some emergency but this is not the general routine. The question is if the minor is taken from the custody of respondent and handed over to the petitioner would he be able to remain with him for 24 hours. In my view neither it is possible nor it is required. The petitioner is also neuro- physician, having his own clinic also and in case the custody is handed over to him he will also either employ some servant or ask his mother who is also an old aged lady to look after the minor. The minor is a school going child, normally he goes to school at the same time when the respondent goes for her duty and return in afternoon when the respondent also return. It is possible that she returns after 2/3 hours. Respondent is residing with her mother and she can look after him 2/3 hours in case of the absence of the respondent. Similarly if the respondent is on night duty minor can sleep without the respondent as is being done in the past. In my view it can not be said that duty of the respondent is so badly affecting his welfare, which necessitate depriving the respondent from her legal rights.”
8. The petitioner/plaintiff filed the appeal against the said order of dismissal of his application, which was heard by 3rd Additional District Judge, Karachi East, and which appeal (bearing No.33/2005) was dismissed vide judgement dated 24.12.2005. Hence the petitioner has filed this constitutional petition.
9. As stated above, the petitioner has contended that the respondent/mother being a lady Doctor herself mostly remains away from her own house to attend to her job and is not left with sufficient time to devote towards proper welfare of the minor son of the parties and therefore, he prayed for the custody of the minor son.
10. In this regard, it is a settled principle of law that right of father to claim the custody of minor son is not a absolute one and that welfare of the minor will always remain paramount consideration for entrusting the custody of the minor either to the mother or to the father (2000 SCMR 838); further mother is entitled to custody (Hizanat) of male child until completion of age of 7 years and female child until she attains puberty and the fact that father is the lawful guardian of his minor children does not compel the Court to pass an order in his favour unless it is in their welfare to do so and welfare of the minor means his material and intellectual, moral and spiritual well being (1983 SCMR 606).
11. Merely because the mother leaves her own house to attend to her own job would not mean to say that she would not be in a position to properly look-after the welfare of the minor; for such a reason alone she would not stand dis-entitled to retain the custody of her minor son/child. Admittedly, both mother and father are doing their respective jobs, and leave their respective houses to attend to their respective duties; thus the minor will have to remain in the house while his parents are on their respective duties, and none of the parties could be said to have superior right of custody on such a ground.
12. The minor has remained with mother/respondent for considerably long period and taking his custody from the mother would amount to throwing him to a new atmosphere which is likely to disturb the routine daily affairs of the minor and may also cause mental disturbance to him. Mother is symbol of sacrifice for the child there is no earthly substitute for love, affection and care of mother; therefore where all things are equal concerning parents, mother has preference in the matter of custody of minor.
13. No mis-reading of evidence or non-reading of evidence and/or illegality in the order/judgement of learned two Courts below is pointed out; hence there being no reason to interfere with the same, this Constitutional Petition was dismissed on 06.03.2007 vide a short order in the following terms:-
“For the reasons to follow in detailed judgement, the petition is dismissed in limine with the direction that the petitioner/father shall be entitled to have the temporary custody of the minor son from the house of his mother viz. the respondent at 11.00 a.m. on a Saturday and that he shall without fail leave the custody of his minor son at the house of the respondent/mother in between 10.00 and 11.00 a.m. on the next morning viz. on Sunday. Such an arrangement shall be availed by him on every alternate Sunday.
The above order shall be effective in addition to the earlier orders passed with regard to the arrangement for the petitioner/father to meet his minor son during the summer vacation and winter holidays (as directed earlier) alongwith the arrangement/directions made earlier for the purposes of Eid meetings and the Birthday meetings of the child with the petitioner/father.”
Above are the reasons for the said short order.
JUDGE
Dated 2007