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2025 C L C 960
[Lahore]
Before Masud Abid Naqvi, J
FAYYAZ-UL-HASSAN ANWAR ---Petitioner
Versus
Mst. SHEHLA KHALID and another ---Respondents
Writ Petition No. 46618 of 2021, heard on 21st March, 2024.
Guardians and Wards Act (VIII of 1890)---
----S. 25---Non-custodial parent, rights of---Minor girl---Overnight stay with father---Scope---Guardian
Court, on the statement of the father, while dismissing his application for custody as withdrawn, issued a
schedule of visitation on number of events/days (including Eids, birthday of minor, vacations) also
allowing overnight stay of minor with father on certain terms---Father filed constitutional petition as the
Appellate Court partially accepted the appeal of mother and framed new schedule for visitation ,
excluding overnight stay of minor girl with father---Validity---Non-custodial parent has all the rights to
meet his/her children and neither right of access to his/her minor children can be denied nor a non-
custodial parent will be considered as an alien to his/her children---A minor not only needs love,
affection, care and attention of a mother but also the father and negating a non-custodial parent of
his/her right to meet his/her minor children would lead to emotional deprivation---A non-custodial
parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved
without properly chalked visitation schedule---Due to lack of interaction with non-custodial parent, the
children start forgetting and in many cases disliking the non-custodial parent and this phenomenon has
been named as Parental Alienation Syndrome by the psychiatrists---Hence, visiting schedule
significantly bridges a relationship between the minor children and a non-custodial parent---Using
visitation rights, a non-custodial parent can not only recolour the emotions of minor children for him/her
but also reinvigorate the bond of love and affection with the minor---Although, the law on the subject of
visitation is contained in the Guardians and Wards Act, 1890, but there are no guidelines about the
duration, frequency of visits of minor and about the visitation schedule; hence, while deciding about the
visitation schedule, the paramount consideration is the welfare of minor---Considering the paramount
consideration of welfare of minor and rights of father/petitioner, High Court chalked new visitation
schedule of minor by virtue of which the petitioner/father was entitled to meet with his daughter/minor
on certain days/events (including Eids, Birthday of minor, vacations) and overnight stay of minor with
father was also allowed, though such number of nights were decreased---High Court set-aside the
impugned judgment passed by Appellate Court by amending the visitation schedule accordingly---
Constitutional petition, filed by father of minor , was partly allowed.
Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991 ref.
Muhammad Mumtaz Faridi for Petitioner.
Allah Ditta Naseem for Respondent. No. 1.
Date of hearing: 21st March, 2024.
JUDGMENT
MASUD ABID NAQVI, J.---Brief facts of this writ petition are that petitioner/ father filed an
application under Section 25 of the Guardians and Wards Act, 1890 ("Act") for custody of the minor
namely Marosh Hassan, which was contested by Respondent No. 1/mother by filing reply and raising
certain legal as well as factual objections. Out of divergent pleadings of both the parties, issues were
framed by the learned Guardian Court. Thereafter, on 10.06.2020, the petitioner/father appeared before
the learned Guardian Court and got recorded his statement which is reproduced hereunder:-
"stated that if schedule of the minor's meeting with me as a real father be fixed by the Court then I
would not be having any objection if the instant petition for custody of the minor be dismissed as
withdrawn."
Learned Guardian Court issued a schedule of meeting with minor and dismissed the petition as
withdrawn vide order dated 10.06.2020. Feeling aggrieved, Respondent No. 1 filed an appeal and
learned Additional District Judge, Pakpattan vide judgment dated 31.05.2021 partially allowed the
appeal and issued new schedule for visitation of minor with the petitioner/father. Being dissatisfied, the
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petitioner/father has filed the instant writ petition and challenged the validity of impugned judgment
passed by the learned Appellate Court.
2. During arguments, learned counsel for the petitioner has shown no objection on certain
amendments in the order of learned Guardian Court, under instructions, while learned counsel for
respondent No.1 fully supports the impugned judgment, passed by learned Appellate Court with the
arguments that the petitioner/ father is living alone without any female in the house and will not properly
maintain his ten years old minor daughter and the respondent No.1/mother seriously apprehends that
overnight stay will be misused by the petitioner/father in removing the minor from the jurisdiction of the
learned Guardian Court but also acknowledges that the petitioner/ father is paying the maintenance of
minor without any arrears at this moment. On query, learned counsel for the petitioner, under
instructions of petitioner present in the court, fully assures this Court that the petitioner will never ever
remove the minor from the jurisdiction of the learned Guardian Court. I have heard the arguments of the
learned counsel for the parties and perused the available record as well as have minutely gone through
the impugned judgment.
3. Perusal of record reveals that after recording the statement of the petitioner/father, the learned
Guardian Court dismissed the application under Section 25 of the Guardians and Wards Act, 1890 as
withdrawn and also issued a schedule of visitation, which is reproduced hereunder: -
(i) The interim custody of the minor will be handed over to the petitioner (father) on first
Saturday of every Calendar month at 5:00p.m and respondent shall return the interim custody
of the minor to the respondent (mother) on first Sunday at 5:00p.m.
(ii) On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody
of the minor on 2nd day of Eid-ul-Fitar from 5:00.p.m. and petitioner shall return the interim
custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Fitar at 5:00p.m.
(iii) On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody
of the minor on 2nd day of Eid-ul-Azha from 5:00 p.m. and petitioner shall return the interim
custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Azha at 5:00p.m.
(iv) On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim
custody of the minor from 5:00p.m and petitioner shall return the interim custody of minor to
respondent (mother) on the next day of birthday of the minor at 5:00p.m.
(v) During summer vacations, the interim custody of the minor shall be handed over to the
petitioner/father on the 1st Sunday of the summer vacations so declared by the
School/Government and shall be returned to the respondent/mother at the evening on the 4th
Sunday so that minor may have four weeks to spent with his father.
(vi) During winter vacations the interim custody of the minor shall be handed over to the
petitioner/father for first half of the winter vacations and the minor shall be returned to the
respondent/mother. All the above said meetings will be subject to submission of surety bonds
to the tune of Rs.700,000/- and fee payable to the bailiff by the petitioner.
Learned Appellate Court partially accepted the appeal of Respondent No. 1 /mother and new schedule
for visitation of minor with respondent was framed, which is reproduced hereunder: -
(i) The interim custody of the minor will be handed over to the respondent (father) on first
Saturday of every Calendar month at 10:00 a.m. and he shall return the interim custody of the
minor to the appellant (mother) on the same day at 1:00 p.m. This meeting would be
happened in the visitation room established inside the court premises.
(ii) On second day of every Eid, at 11:00 a.m. the custody of minor will be handed over to the
respondent. And he will return her custody to appellant at 3:00 p.m. on the same day subject
to furnishing surety bond of Rs.10,00,000/-. Surety will be responsible for safe custody of
minor and handing over the custody of minor from one person to another.
(iii) On the occasion of birthday of the minor, the respondent (father) shall be entitled for interim
custody of the minor from 1:00 p.m. and he shall return the interim custody of minor to
appellant (mother) on the same day at 4:00 p.m.
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(iv) The respondent (father) will visit the minor during Summer and Winter vacations on every
Saturday of month at 11:00 a.m. to 01:30 p.m. at Court premises because minor is of tender
age and her custody cannot be handed over to the respondent for night stay.
(v) All the above said meetings will be subject to submission of surety bonds to the tune of
Rs.10,00,000/- and fee payable to the bailiff by the respondent (father).
4. It is a settled proposition of law that a non-custodial parent has all the rights to meet his/her
children and neither right of access to his/her minor children can be denied nor a non-custodial parent
will be considered as an alien to his/her children. A minor not only needs love, affection, care and
attention of a mother but also the father and negating a non-custodial parent of his/her right to meet
his/her minor children would lead to emotional deprivation. A non-custodial parent has an inherent right
to effectively participate in upbringing of minor and that cannot be achieved without properly chalked
visitation schedule. Due to lack of interaction with non-custodial parent, the children start forgetting and
in many cases disliking the non-custodial parent and this phenomenon has been named as Parental
Alienation Syndrome by the psychiatrists. Hence, visiting schedule significantly bridges a relationship
between the minor children and a non-custodial parent. Using visitation rights, a non-custodial parent
can not only recolour the emotions of minor children for him/her but also reinvigorate the bond of love
and affection with minor.
5. Although, the law on the subject of visitation is contained in the Guardians and Wards Act (VIII of
1890) but without any guidelines about the duration, frequency of those visits of minor and about the
visitation schedule, hence, while deciding about the visitation schedule, the paramount consideration is
the welfare of minor. Considering the paramount consideration of welfare of minor and in view of the
dictum laid down by the Honorable Superior Courts about chalking the visitation schedule of minor,
especially the case reported as Mst. Madiha Younus v. Imran Ahmed (2018 SCMR 1991), the petitioner
is entitled to meet with his daughter/ minor as per new visitation schedule which is reproduced
hereunder;
(i) The interim custody of the minor will be handed over to the petitioner (father) on first
Saturday of every Calendar month at 5:00 pm and respondent shall return the interim custody
of the minor to the respondent (mother) on first Sunday at 3:00 p.m.
(ii) On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody
of the minor from 5:00 p.m. and petitioner shall return the interim custody of the minor to the
respondent (mother) on the 3rd day of Eid-ul-Fitar at 3:00 p.m.
(iii) On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody
of the minor from 5:00 p.m. and petitioner shall return the interim custody of the minor to the
respondent (mother) on the 3rd day of Eid-ul-Azha at 3:00 p.m.
(iv) On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim
custody of the minor from 4:00 p.m. and petitioner shall return the interim custody of minor
to respondent (mother) on the same day of birthday of the minor at 8:00 p.m.
(v) During summer vacations, the interim custody of the minor shall be handed over to the
petitioner/ father on the 1st Sunday of the summer vacations so declared by the
School/Government and shall be returned to the respondent/mother by the petitioner after
two weeks of minor's stay with him and during winter vacations the interim custody of the
minor shall be handed over to the petitioner/father for just first three days of the winter
vacations and thereafter, minor shall be returned to the respondent/mother.
(vi) All the above said meetings will be subject to submission of surety bonds to the tune of Rs.
1000,000/- (rupees ten lacs only) by the petitioner/father to the satisfaction of the learned
guardian court prior to receiving the minor from respondent/mother and also surrendering his
international valid passport during the minor's stay with him and by paying fee payable to the
court's bailiff by the petitioner.
6. In view of above discussion, instant petition is partly allowed by setting aside the impugned
judgment of learned Appellate Court and by also amending the visitation schedule, chalked out by the
learned Guardian Court.
MQ/F-5/L Petition allowed.
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