IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

C.P No. S-827 of 2019

Petitioners Mst. Tahmina Ansari,

Through Mr. Abdul Rehman Bhutto, Advocate.

Respondent No.1. Rafique Ahmed @ Gulzar Lakho(Called absent) .

P.O Sindh & others. Through Mr. Abdul Hamid Bhurgri, Additional
Advocate General.

Date of hearing 12-10-2020

Date of decision 29 -10-2020

.-.-.-.-.-.-.-.-.-.-.-.-.

JUDGMENT

ZULFIQAR ALI SANGI, J. Through the instant petition, the

petitioner has challenged the order dated 30.09.2019, passed by Civil

and Family Judge, Lakhi Ghulam Shah, and the judgment and decree

dated 20.11.2019, passed by learned 3rd Additional District Judge/MCAC,

Shikarpur.

2. Brief facts of the instant petition are that respondent No.1 filed

Guardianship Application No.01/2019 under section 25 of the Guardian

and Wards Act, 1890, against the petitioner, wherein he asserted that

the marriage of petitioner and respondent No.1 was solemnized on

04.04.2008. From such wedlock, they gave birth to minors, namely,
Sakina Batol aged about 10 years, Bakir Ali aged about 10 years, Basit

Ali aged about 6 years, and Muqadas Fatima aged about 5 years, who
were residing with the petitioner. He used to make payment of their
maintenance on each and every month regularly and came to know

that his wife was misusing the said amount and was not spending said
money for the betterment of minors. It was further alleged that

respondent No.1 divorced the petitioner on 04.04.2017, then the

respondent No.1 was maintaining the minors since their birth and he is

interested in taking their custody as he is the natural guardian and has

the right to supervise the children. It was further alleged that the
respondent No.1 has a good reputation in his vicinity, he belonged to a
well educated and civilized family and he has deepest love and affection

for the children, therefore, he has not contracted second marriage,

whereas the petitioner is jobless and source-less lady and sometimes

she behaved like a psycho patient, alleging as above respondent No.1

filed Guardianship application before the Civil Judge and Family Court
Lakhi Ghulam Shah with the following prayers:-

a) To direct the respondent to handover the custody of minors to the

applicant, who is father of minors, the applicant being father of minors is
in a position to well maintain them and it is the paramount interest of
minors that their permanent custody be handed over to him, as the
welfare of the minors lies with the applicant.

b) To award the cost of the suit.

c) To grant any other equitable relief, which the court may be deemed fit and
proper under the circumstances of the case.

3. The petitioner upon notice of the family court, appeared and

denied the allegations, both the parties led their evidence, after
assessment of the evidence learned Civil and Family Judge Lakhi

Ghulam Shah allowed the guardianship application to the extent of

handing over the custody of two male children to the respondent No.1
and two minor female children to the petitioner, vide impugned order
dated 30.09.2019. The petitioner preferred Guardianship/Family Appeal
before the learned appellate court, which was dismissed vide impugned

judgment and decree dated 20.11.2019, hence she has filed the instant
petition.

4. Learned counsel for the petitioner submits that learned

Civil/Family Judge, Lakhi Ghulam Shah has committed illegality and
irregularity while partly allowing the guardianship application filed by
the respondent No.1, whereby the custody of two boys was handed over

to the respondent No.1 and custody of two girls was handed over to the
petitioner; that the petitioner is a natural guardian of the boys; that
petitioner and respondent No.1 are residing in the same street and the
children are visiting the house of petitioner and respondent No.1
without any hindrance; that the welfare of the children is with their
mother (petitioner); that evidence produced by the petitioner was not

considered by the family court so also the Appellate Court; that children
are not happy with their father and only the petitioner being their
mother can look after them properly. Lastly he prayed that this petition
may be allowed and order dated 30.09.2019 passed by Civil and Family
Judge Lakhi Ghulam Shah and Judgment dated 20.11.2019 passed by

IIIrd Additional Sessions Judge/Model Civil Appellate Court, Shikarpur

may be set-aside.

5. On the other hand, Mr. Abdul Hamid Bhurgri learned

Additional Advocate General Sindh supported the impugned order
passed by Family Court, and the judgment passed by Appellate Court by
stating that the same are passed after proper assessment of evidence

and prayed that petition may be dismissed.

6. None appeared on behalf of the respondent No.1.

7. I have heard learned counsel for the parties and have gone
through the material available on the record with their able assistance.

8. Record reflects that during the trial respondent No.1 himself

was examined and produced Shafique Ahmed as his witness, whereas

the petitioner was also examined and produced Nazeer Ahmed as her
witness and thereafter by appreciating the evidence, the trial court
decided/partly allowed the application in favour of respondent No:1
which order, on assailing in appeal, also stood maintained.

9. I would take liberty in reiterating established legal principle,

so enunciated by Apex Court, in matters of custody of minor (s) that

welfare of the minor shall always be the paramount consideration
rather a decisive factor, however, the poverty of lady alone would not

be sufficient to hold her disentitled for custody of minor as legally the

burden to maintain the child lies on father. (Mst. Razia Bibi v. Riaz

Ahmed & another (2004 SCMR 821). In a recent judgment the honourable

Apex Court in the case of Mst. Mubeena v. Raja Muhammad & another
PLD 2020 SC 508 while reaffirming the legal position of any agreement

between parents over custody as invalid went on in holding that even

physical disability of mother would not be sufficient to hold her

disentitled from the custody of the child. The operative part reads as:-

“11. The principles of Policy (the Principles’) set out in the

Constitution is the path, and the destination, that the nation has
set for itself. The Principles require that, ‘Steps shall be taken to
ensure full participation of women in all spheres of national
life’. If women with physical life stand excluded from
participation in family life and excluded from the much higher
proclaimed objective of participation in all spheres of national
life. The Principles also require that the State shall protect ‘the
mother and the child’. If child is taken away from the mother,
deprived of her love and benefit of her upbringing the mother
and the child’s relationship is fragmented.”

10. I would further add that a legitimate child can’t come to

existence without parents therefore love, affection, and care of both

the parents is, always, in the best interest of the child and his (child’s)

growth, therefore, a balance is always to be maintained while making

decision in the matter (s) of custody of the minor. I would also add that

the law does recognize the right of Hizanat which itself is an indication
of the fact that in matters of custody of the child with reference to

gender the age of child matters. This, being the rule of Muslim Law

itself, needs to be given weight unless the circumstance otherwise

makes applicability thereof as against the welfare of the minor. All

these aspect (s) are always to be appreciated while making a decision on

the question of fitness of parents for custody of the child.

Having said so, it would be conducive to refer the operative

part of the findings of the trial court in the impugned order which are

as under:-

“Upshot of my above discussion is that the

welfare of minor boys is with
applicant/father; while welfare of minor girls
is with respondent/mother. The applicant is
entitled for custody of minor boys only;
while minor girls shall remain into custody
of respondent/mother. That during both Eid
festivals, the minor boys will live with father
on 1st day of Eid festival; while on second
 day of Eid festivals, the applicant/father
would hand over the custody of minor boys
to mother. Such schedule is also applicable
to mother/respondent in respect of minor
girls. During summer vacations and winter
holidays, the first half of holidays minor boys
would live with applicant; while second half
would reside with mother. The minor girls
may also reside with mother in first half of
summer vacation and winter holidays; while
second half minors would reside with father.
The applicant and respondent may provide
access of meeting to each other on
fortnightly basis as per given schedule, the
applicant should hand over the minor boys
to respondent at 09-00 am and take over at
05-00 pm on each alternative Saturday for
meeting purposes. The respondent shall
hand over minor girls to applicant at 09-00
am and take over at 05-00 pm on each
alternative Saturday for meeting purpose.
Issue decided accordingly”.

11. Prima facie, the manner in which the trial court has found

both the parents entitled for custody of minor children is itself sufficient

that both parents are fit for custody of minor (s) hence, prima facie, the
decisive factor was that of Hizanat because of which the custody of

male-children have been given to father while that of female-children

has been given to mother. Such order of the learned trial court has also

been maintained. I am conscious that ‘rules of personal law are

subservient to the welfare of the minor’ (Firdous Iqbal v. Shafaat Ali

and others (2000 SCMR 838) but this principle itself speaks that a

departure thereto would come into play when the welfare of minor is
likely to prejudice because of fitness of a parent. In the instant matter,

the remaining of the child with any of the parents is not likely to

prejudice the welfare of the minor which fact, even, is reiterated by the
counsel for the petitioner in the following words:-

“Petitioner and respondent No.1 are residing in the same street

and the children are visiting the house of petitioner and
respondent No.1 without any hindrance”

If the position is so then the petitioner is not legally justified to question

the remaining of the male-children with a father who, per right of
hizanat, is entitled for such custody of the male children. It is pointed

out that due to love and affection with the minors the respondent has
not contracted second marriage; no any complaint was made by the

minors before the appellate court or before this court regarding the
non-maintenance by their father. In addition to this, there has been

provided a complete mechanism by the two court (s) below for assuring

the love and company of both parents on the special occasions.

12. In view of the above, the impugned order dated 30.09.2019

passed by the Civil/Family Judge Lakhi Ghulam Shah in Guardian and

Wards Case No.01/2019 and the judgment dated 20.11.2019, passed by

the III-Additional District Judge, Shikarpur in Family Appeal No. 18 of

2019 are maintained whilst dismissing the instant petition.

13. The petition is disposed of in the above terms.

Judge