2010 PLP 556 (YLR)

MS. JAMILA JAHANOOR ASLAM, J.

This is detailed judgment is subsequent to my short order dated 25-3-2009. The petitioner has filed present Writ Petition No.888 of 2008 impugned judgment/decree dated 11-3-2008. It is averred that the impugned judgment/decree is at variance with that of trial Court order dated 13-6-2007, wherein custody of the minor Aamna Ashfaq now aged ten (10) years was ordered to be handed over to the petitioner.

2. Respondent No.1 impugned the judgment/decree of the trial Court dated 13-6-2007 in Appeal No.130 of 2007 which was decided in favour of respondent No.1.

3. I have studied the record at length and tend to disagree with the judgment/decree dated 11-3-2008. A grave injustice has been rendered to the minors. They have suffered due to break-up of their home and are now being deprived of their love for each other. The relationship of the petitioner and respondent No.1 was on the basis of a document. It was severed with the stroke of a pen but the one between the minors is a relationship that can never be severed.

4. I have spoken to the minors in my chamber and feel that both of them are traumatized and emotionally debilitated. They have also been brain washed by the parents. The minor boy spoke of an incident which occurred when he was barely a toddler and had met with an accident in which he broke his arm. It is not possible for him or any child of that age to remember that incident, so it is obvious that he has been told by the petitioner about the accident. He has also been told by the petitioner that respondent No.1 his mother, did not care for him and was responsible for the accident. Whereas the minor girl has been told by respondent No.1 that her father (petitioner) and the paternal grandmother were very unhappy when she was born because they wanted a male child. In effect, the minors are being used as weapons in the dissension between their parents. In this melee, they are not being given any religious training whatsoever except for knowing the first "Kalma" .

5. As far as the relationship between the two minors is concerned, the boy admitted that he missed his sister but the girl categorically stated that she did not miss her brother. This is unnatural and the State of affairs is abysmal thus needs to be rectified.

6. It is a question of settling for the lesser of the two evils. However, to dislodge one or the other minor abruptly at this moment would not be advisable as it would further traumatize the minors because both of them want to stay where they are. It is imperative that the relationship between the minors be restored to the extent that they want to be together. To this end, I passed the short order dated 25-3-2009.

7. These are innocent lives that are in the firing line, they did not ask to be born so now they cannot be made footballs on the field of their parents vendettas. Utmost care and protection has to be exercised so that they don't become misfits in society. They have to be handled gently. It is absolutely essential that they be together and enjoy a healthy relationship of brother and sister.

8. Respondent No.1 has re-married and there are too many "Na-Mehrams" in the life of the minor girl. The step-father, his sons, his brothers etc. The minor girl Aamna Ashfaq is at an extremely vulnerable stage of her life. When certain matters are prohibited under Islam, they need to be taken seriously. There is no doubt that the welfare of the minor is the predominate consideration. I feel both, the Injunctions of Islam as well as the welfare of the minor must be given due consideration. For the minor girl to be surrounded by males in the non-prohibitory decree is not in her welfare. Moreover she is being taught to hate the males, it is most natural for her to love. Much in the same way, the minor boy is being taught to hate his mother. The minor girl will never get the love, affection and protection from her step-father and step-brothers as she would have from a real father and brother.

9. However, as mentioned earlier, this matter has to be handled with kid gloves. In view of the reasoning herein above, I hereby issue directions that my order dated 25-3-2009 hold the field for six weeks to give both the minors enough time to establish a bond, thereafter, I uphold the order of the trial Court dated 13-6-2007 and modify it to the extent of directions that the custody of the minor girl be handed over to the petitioner after the lapse of a six weeks period commencing 1-4-2009, thereafter, respondent No.1 is to be allowed visitation in terms that both the minors will spend every first and third short week end of the month from Friday 14-00 hours to Saturday 14-00 hours on a regular basis as is being conducted presently under directions of my short order dated 25-3-2007. Writ petitioner is disposed of in the above mentioned terms. H.B.T./M-249/L Order accordingly.