10/3/2018 2018 M L D 1592

2018 M L D 1592

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. AYESHA SHAHID---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 63673 of 2017, decided on 26th March, 2018.

Guardians and Wards Act (VIII of 1890)---

----S. 12---Interim custody of minor---Visitation schedule of minor with his father---Scope---Overnight stay with
father---Welfare of minor---Scope---Meeting of minor with father in Court premises---Effect---Petitioner/mother
contended that Appellate Court had wrongly chalked out overnight stay of minor with his father/respondent as
the same would affect his growth adversely and he was likely to confront some unpleasant situation there---
Mother also apprehended removal of the minor out of territorial jurisdiction of the Court---Father contended that
proper growth of the minor required love and affection of parents and Guardian Court had wrongly dismissed his
prayer of meeting with his son out of Court premises---Validity---Welfare of minor was prime consideration
before the Court, admittedly, respondent was father of the minor and being the natural guardian he had right of
his supervision under the Islamic Law, therefore, on separation of the parents the minor could not be
permanently deprived from the love and affection of either of the parents---Minor, in the present case, had
crossed the age of six years, therefore, he should have maximum interaction with the father even if the custody
was with the mother, otherwise, it may cause an estrangement in the mind of the child which may ultimately
leave a vacuum in the accomplishment of his personality for deprivation of love, affection and company of his
father---Court, in order to achieve such goal, was to make every possible effort to chalk out reasonable visitation
schedule in friendly atmosphere---Meeting of the minor in the Court premises with the father was neither
conducive nor effective and did not serve the purpose of meeting, therefore, welfare of the minor was in meeting
with the father at his residence--- Appellate Court had already imposed condition of submission of surety bonds
by the father at the time of taking over custody of the minor which was sufficient to dispel the apprehension of
the mother regarding removal of the minor from the territorial jurisdiction of the Court---No illegality or
infirmity having been noticed in the impugned order passed by the Appellate Court, constitutional petition was
dismissed accordingly.

Sh. Zahid Mehmood for Petitioner.

Fahad Ahmad Siddiqui for Respondent No.3.

ORDER

MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this petition under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of impugned judgment of the
learned Appellate Court dated 09.08.2017 whereby the said court while accepting appeal of respondent No.3
against the order of the learned Guardian Judge dated 02.07.2016 chalked out meeting schedule of the minor
with respondent-father in the following manner:-

"i. The interim custody of the minor shall be handed over to the petitioner on 2nd and 4th Saturday of
every calendar month at 05.00 PM and petitioner shall return the interim custody of the minors to the
respondent on 2nd and 4th Sunday at 5.00 PM,

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10/3/2018 2018 M L D 1592

ii. On the occasion of Eid ul Fitar, the petitioner/ father shall be entitled for interim custody of the minors
on 2nd day of Eid-ul-Fitar from 5.00 PM and petitioner shall return the interim custody of the minor to
the respondent on the 3rd day of Eid ul Fitar at 5.00 PM

iii. On the occasion of Eid ul Azha, the petitioner/ father shall be entitled for interim custody of the
minors on 2nd day of Eid-ul-Azha from 5.00 PM and petitioner shall return the interim custody of the
minor to the respondent on the 3rd day of Eid ul Azha.

iv. On the occasion of birth day of the minor, the petitioner/ father shall be entitled for interim custody of
the minor from 5.00 PM and petitioner shall return the interim custody of the minor to the respondent on
the next day of birthday of the minor at 5.00 PM

v. On the occasion of birth day of father of the minor petitioner/ father shall be entitled for interim
custody of the minor from 05:00 PM and petitioner/father shall return the interim custody of the minor to
the respondent on the next day of birthday of father of the minor at 5.00 P.M.

vi. During summer vacations, the appellant will be entitled to have custody of minor for one month.

vii. During winter vacations, he will be entitled to meet with his minor children for five days."

2. Learned counsel for the petitioner submits that the visitation schedule set out by the learned Appellate Court is
very harsh; that at present age of the minor is about six years and at this stage his overnight stay with the
respondent-father is likely to affect his growth adversely; that the respondent-father is unable to properly
maintain the minor as such, the petitioner being the real mother, has serious reservations that the minor may
confront unpleasant situation over there or may encounter some psychological phenomena; that there is also
strong apprehension that the respondent would remove the ward from the territorial jurisdiction of the Guardian
Court; that the learned Guardian Judge had rightly formulated a schedule of meeting of the minor with the
respondent/ father in the court premises which has illegally been modified by the learned Appellate Court.

3. On the converse, learned counsel for respondent No.3 submits that the respondent is real father of the minor;
that proper growth of the minor requires love and affection of the parents and its deprivation from either side
would not be in the welfare of the minor; that meeting schedule chalked out by the learned Guardian Judge in
the court premises was not conducive as such the learned Appellate Court keeping in view the welfare of the
minor has rightly formulated the visitation schedule which needs no intervention by this Court in its
Constitutional jurisdiction.

4. Arguments heard. Record perused.

5. Irrespective of the fact whether the application before the learned Guardian Judge is under section 12(2) of
Guardians and Wards Act, for interim custody of the minor or under section 25 of the Act ibid for permanent
custody of the minor the only consideration which requires to be adhered by the learned Guardian Court is the
welfare of the minor and nothing else. Admittedly, respondent No.3 is the real father of the minor and being the
natural guardian he has right of his supervision under the Islamic Law. Therefore, on separation of the parents
the minor cannot be permanently deprived from the love and affection of either of the parents. The minor has
now crossed the age of six years, therefore, he should have maximum interaction with the father even if the
custody is with the mother, otherwise, it may cause an estrangement in the mind of the child which may
ultimately leave a vacuum in the accomplishment of his personality for deprivation of love, affection and
company of his father. In order to achieve this goal the concerned Court should make every possible effort to
chalk out a reasonable visitation schedule in a congenial, homely and friendly atmosphere. The visitation
schedule chalked out by the learned Guardian Judge in the court's premises while dismissing the application of
the respondent for interim custody of the minor in no manner could be construed to meet the above objective.
Meeting of the minor in the court premises with the father is neither conducive nor effective and does not serve
the purpose of meeting. Therefore, welfare of the minor lies that his meeting with the respondent-father should
be arranged at his residence. The learned Appellate Court after taking into consideration all the pros and cons
has rightly chalked out the visitation schedule of the minor in the above terms which in my considered view is in
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the interest and welfare of the minor. The learned Appellate Court has already imposed a condition of
submission of surety bonds by the respondent at the time of taking over custody of the minor which is sufficient
to dispel the apprehension of the petitioner regarding removal of the minor from the territorial jurisdiction of the
Guardian Court. Learned counsel for the petitioner is unable to convince this Court in what manner the welfare
of the minor is compromised if the impugned schedule is implemented upon as such this Court is not inclined to
intervene with the same in its Constitutional jurisdiction.

6. Resultantly, this writ petition is dismissed.

MQ/A-45/L Petition dismissed.

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