2018 PLP 1361 (MLD)

FAHIM AHMED SIDDIQUI, J.

Through the instant petition, the petitioner has called in question the order dated 16-10-2015 passed by the Family Court-III, Mehar, which was upheld under the impugned judgment dated 25-04-2016 passed by the learned District Judge, Dadu. The learned Family Judge allowed the Guardianship Application of the respondent No.1 and custody of minor namely Aisha was ordered to be handed over to the respondent No.1 with visitation rights of the petitioner limited to 1st Saturday of every month.

2. The matrix of facts is that the Respondent No. 1 filed a Guardianship Application bearing No. 01/2014 before the aforementioned Family Court praying for her appointment as guardian of the person and property of minor baby Aisha, aged about 3 years at that time. During dependency of their application, the respondent No. 1 succeeded in getting a decree of dissolution of marriage by way of Khula. However, the guardianship case proceeded and ultimately decided in favour of respondent No.

1. The petitioner has challenged the verdict of the learned Family Court by preferring a Family Appeal bearing No. 27/2015 before the learned District Judge, Dadu but the same was also dismissed through impugned judgment.

3. The learned counsel for the petitioner addressed the court at length. The gist of his arguments is that the court of the first instance did not consider the welfare of minor adequately, which is the prime duty of the Court at the time of disposal of a guardianship application. According to him, the children in the family of responding No. 1 do not get a proper education, and this fact is admitted by one of the witness namely Ghulam Hussain.

4. The learned counsel for the respondent while opposing the instant petition has argued that the order and judgment passed by the lower forums are correct and proper. According to him, there is no illegality or irregularity in the findings of both the Courts below. According to him, the respondent No. 1 is taking care of the other two girls properly, and they are getting a good education in a school. Regarding rights of visitation, the contention of the learned counsel for the respondent No.1 is that the same may be enhanced if necessary.

5. I have gone through the entire material placed before me in the light of the arguments advanced by both the able members of the bar. As per record, after marriage, the respondent No.1 lived with the petitioner for some time, and during the continuity of their marriage, the couple was bestowed with three daughters. After the passage of time, the relations between spouses turned rough, and the respondent No.1 claimed that petitioner turned her out of the marital abode, with the two minor children while baby Ayesha remained with the petitioner. Whatever the reason it is, the marital bond is not in existence now, and parties appear to be badly antagonistic to each other. After segregation of the family, the respondent No. 1 started a legal battle for the custody of her remaining daughter in which she subsequently succeeded.

6. It is worth noting that the petitioner is willing to keep baby Aisha, but he does not show his eagerness to keep the remaining two daughters with him. I am of the view that it will be better for the sisters to live together instead of separating them from each other. In this way, they will be enjoying the company of their siblings and will grow up with a sense of sisterhood and a better understanding and harmony with each other.

7. The learned counsel for the petitioner emphasized upon the welfare of the minor by submitting that the education of baby Aisha will be badly suffered in custody of respondent No.1. In this respect, he quoted a witness produced by the petitioner before the trial court. It is worth noting that education of a minor depends upon the maintenance provided by the father of the minor. If the petitioner is willing to provide a better education for his children, he may do so by bearing the cost of education of his choice. The petitioner cannot establish that the remaining two girls are not getting proper education and if it is so then again the responsibility goes to the petitioner, as it is his duty to maintain his children properly. Another aspect of the case is important if the respondent No.1 is a good and proper person for keeping the custody of two daughters of the petitioner then how she cannot be a good and proper person for keeping the third daughter of the petitioner.

8. It is worth mentioning that for the upbringing of the girl child, it is necessary that she will remain under the supervision of a matron and a mother is a natural matron for her children. It has also come on record that after the dissolution of her marriage, the respondent No. 1 has yet not married again and can devote all her time for looking after and upbringing of her three daughters. According to sharia, the maintenance (kifalat) is the responsibility of father while brooding (hizanat) is the responsibility of mother, and a male child needs the care of his mother up to a certain age but a female child needs the requirement of 'brooding' up to her puberty and even up to her marriage.

9. So far the right of visitation is concerned, no doubt it is the right of a father to enjoy the company of his daughter and to be well acquainted and familiarized with her. I am of the view that the visitation of once in a month is to be revised, as such the learned trial Court is directed to arrange meetings of the petitioner with baby Aisha twice a month on first and third Saturday of the month or any other day with the same terms and condition as per original order passed by learned Family Judge. In my humble view, the court premises is the last place to be selected for the purpose of the meeting. If possible, it is better to select some other place for the meeting of minor like the school of the minor or any other place seems to be proper to the trial court, considering the aim of safety and security of minor and ease and facility to the parties.

10. The outcome of the above discussion is that there is no illegality in the order and judgment passed by the two forums below, as such the instant petition is disposed in above terms with no order as to cost. MQ/I-18/Sindh Petition dismissed.