2021 PLP 2030 (YLR)

JAWAD HASSAN, J.

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has prayed to set-aside impugned order 24.09.2019 passed by Guardian Judge-I, Lahore. She has also prayed to recall the order dated 12.09.2019 passed by this Court in W.P.No.38793 of 2016.

2. Notices were issued to the Respondent No.4 repeatedly but he did not bother to put his appearance therefore, he is proceeded against ex parte.

3. The sole grievance agitated by the Petitioner is that visitation rights guaranteed under the Guardians and Wards Act, 1890 (the "Act") are being infringed due to the reason that no proper visitation schedule was chalked out for meeting with her children who are currently in the custody of the Respondent No.4. It evinces from the record that the Petitioner filed petition under section 25 along with section 12 of the Act for the custody of Abdul Ahad Naeem and Abdul Rafay Naeem in year 2013 while the Respondent No.4 filed petition under sections 12 and 25 of the Act for the custody of Zaid Bin Naeem. The Guardian Judge-I, Lahore accepted the petition of the Respondent No.4 and dismissed that of the Petitioner however, the Petitioner was held entitled to meet with her children and in this respect visitation schedule was chalked out vide order dated 23.10.2014. The said order was challenged by the Respondent No.4 through appeal before the Additional District Judge, Lahore who vide judgment dated 25.10.2016 remanded the case to the Guardian Judge with direction to provide an opportunity to produce additional evidence and proceed further as per law. Being dissatisfied with aforesaid judgment, the Petitioner filed W.P. No.38793 of 2016 which was allowed vide judgment dated 04.04.2018 reported as "Mrs. Amna Nawaz v. ADJ and others" (2018 MLD 1303) wherein following observations were made: "So far as the meeting schedule is concerned, the aggrieved party may approach the concerned Guardian Judge for chalking out fresh meeting schedule according to the consensus of parties".

4. It is noted that after passing aforesaid judgment, the Respondent No.4 filed application under section 151, C.P.C. before the Guardian Judge-I, Lahore for the return of title record of Guardian Petition to Appellate Court. The said application was duly contested by the Petitioner and before any decision on it, the said Respondent filed C.M.No.01 of 2019 before this Court for the clarification of judgment dated 04.04.2018 with the stance that the word "Guardian Judge" mentioned in last paragraph of the judgment be substituted with Additional District Judge, Lahore which was accordingly allowed on 12.09.2019 and consequently, the Guardian Judge-I, Lahore vide order dated 24.09.2019 allowed the application of the Respondent in terms of order of this Court passed in C.M.No.01 of 2019.

5. Record clearly demonstrates that learned Additional District Judge vide judgment and decree dated 25.10.2016 remanded the case to the learned Trial Court along with complete record to proceed further as per law but the said judgment and decree was set-aside by this Court through judgment reported in Mrs. Amna Nawaz case (supra) which has attained finality and at the moment, no lis is pending before the learned Additional District Judge either to decide or to chalk out any meeting schedule rather specific direction was given to the learned Guardian Judge to chalk out fresh meeting schedule according to the consensus of the parties. There is no cavil to legal position that for deciding the question of custody of a minor and any other issue relating thereto welfare of the minor is the paramount consideration for the Guardian Court and, therefore, any issue in this regard is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court had to record a definite finding on this point before passing any order in the matter. After setting-aside the judgment dated 25.10.2016 of learned Additional District Judge by this Court through Mrs. Amna Nawaz case (supra) only the decision of the Guardian Judge was in the field which is the final Arbiter of the matters related to the custody of the minors and there cannot be any other Court more suited to issue an amended visitation schedule of meeting of the Petitioner with her children. In "Ayesha Tahir Shafiq v. Saad Amanullah Khan and 2 others" (PLD 2001 Karachi 371), it has been held that "the Guardian Court has been empowered to modify, set aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor and that the order passed earlier in that context will not operate as a bar of jurisdiction for the Guardian Court for all future time to come". It is highly unfortunate that the Petitioner, who is the real mother of the children, is making hectic efforts and running from pillar to post merely for getting a meeting with her own children but neither visitation schedule, as per order of this Court, has so far been chalked due to filing miscellaneous applications by the Respondent No.4 nor he appeared and produced children before this Court despite specific orders dated 21.11.2019, 24.08.2020, 02.09.2020, 07.10.2020 and 17.05.2021. Non-appearance of the Respondent No.4 clearly shows that he is deliberately avoiding to appear and produce children despite issuing of various notices to him at the same residential address which is mentioned in all the pleadings up to this Court.

6. In view of above, the instant petition is allowed and the impugned order dated 24.09.2019 passed by the Guardian Judge is set aside. Needless to state that the order of this Court dated 12.09.2019 made in C.M. No.1 of 2019 also stands modified accordingly. The Petitioner may approach the Guardian Judge for getting a fresh schedule of meeting with her children. The Guardian Court concerned is directed to proceed with matter and chalk out fresh meeting schedule in terms of observation made in Mrs. Amna Nawaz case (supra) within one month of the receipt of this order and submit compliance report to Deputy Registrar (Judicial) of this Court. MQ/A-51/L Petition allowed.