2010 PLP 943 (MLD)

KHADIM HUSSAIN M. SHAIKH, J.

Brief facts of the case are that the respondent No.1 Mst. Shabiran was married with the petitioner Javed Ali Mason in year, 2005. Afterwards there arose dispute between the parties over certain Iqrarnama allegedly executed between them in the year, 2005 with the result that the petitioner had driven out, the respondent No.1, from his house when she was conceived and after three months of that incident she gave birth to a baby namely Anjeeba Rabia who is now aged of 2 years. As the petitioner failed to provide maintenance to the respondent No.1 and her daughter baby Anjeeba Rabia, therefore, she filed suit for dissolution of marriage against the petitioner which was decreed on the basis of Khulla on 11-10-2007 by learned Court of 1st Senior Civil Judge and Family Judge, Larkana. It is alleged that the petitioner snatched away baby Anjeeba Rabia from lawful custody of respondent No.1 when she went to attend a marriage ceremony of her relative in Badeh Town Taluka Dokri.

2. Respondent No.1 then filed a Guardianship Application under section 7 read with section 25 of Guardian and Wards Act, 1890 before the learned Court of 3rd Senior Civil Judge and Family Judge, Larkana. Alongwith the said Guardianship Application she also tiled application under section 12 of Guardians and Wards Act, 1890 seeking temporary custody of her daughter baby Anjeeba Rabia who was at that time aged about 12 months. Learned Guardian Court after hearing the counsel for the parties passed order, dated 2-6-2008 directing that temporary custody of minor baby Anjeeba Rabia be handed over to the applicant who is respondent No.1 in this petition.

3. The petitioner filed appeal under section 14 of Family Courts Act, 1964 against the said order, dated 2-6-2008, which was finally heard and decided by the learned 1st Additional District Judge, Larkana vide order, dated 6-5-2009 whereby the said appeal was dismissed with cost of Rs.5,

000. The petitioner thereafter has filed this petition challenging both the concurrent orders passed by the Courts below discussed supra.

4. The learned counsel for the petitioner has mainly contended that the respondent No.1 is a non-Muslim and, per her, the petitioner is Qadiani, and she cannot bring up the child according to Muslim traditions, and she prays that the orders passed by the learned Guardian Court and the appellate Court may be set aside. She has placed her reliance on case of Imran Ali v. Mst. Iffat Siddiqui and others PLD 2008 Kar. 198.

5. I have carefully considered the arguments advanced by the learned counsel for the petitioner and have gone through the material placed on record. .

6. Admittedly the minor namely Anjeeba Rabia, who is of tender age of two years, would definitely need constant care of mother and there cannot be any substitute for a mother and it is also universal truth that the lap of mother is God's own cradle for a child, therefore, till the matter regarding custody of the minor was finally decided, the minor was to he given in proper custody keeping in view her tender age at this stage.

7. Manifestly the conduct of the petitioner remained contumacious throughout the proceedings inasmuch as that he has not complied with the order of the Guardian Court and also failed to comply with the orders of the appellate Court for production of minor Anjeeba Rabia in Court for the purpose of affording chance of meeting to the petitioner with her own daughter, the minor in his case. After hearing the parties' counsel the appellate Court dismissed the appeal of the appellant with cost of Rs.5,

000. The petitioner instead of complying with the concurrent orders passed by the Courts below filed the present Constitutional petition by concealing the material facts regarding non-compliance of the orders of the Guardian Court as well as appellate Court. It needs no reiteration that awarding of discretionary relief under the Constitution mainly depends upon the conduct of the parties. The petitioner has acted contumaciously with sole object to prolong the litigation and to add the agonies of the respondent No.1, hence no equitable relief could be granted in discretionary jurisdiction to such like person.

8. The matter is pending before the Guardian Court where apart from the welfare of the minor the fact of respondent No.1 having different faith will also have to be taken into account while finally deciding the issue about custody of minor-Anjeeba Rabia.

9. Case of Imran Ali, relied upon by the learned counsel for the petitioner is distinguishable on the facts and circumstances of the case in hand as in the said reported case temporary custody of wards namely Ali Muhammad and Ali Haider, aged about 8 to 5 years respectively, was handed over to their mother and the order was complied with by the petitioner and at the time of conclusion of the case, after the evidence was led, the permanent custody was refused to mother keeping in view the ages and welfare of the minors and whereas in this case the minor is hardly aged of two years and she needs constant care and custody of the mother as discussed above.

10. In view of what has been discussed above, I am of the considered opinion that there is no infirmity or illegality in the impugned orders passed by the Courts below, which are founded on the appreciation of the material and the appellate Court in view of the petitioner's contumacious conduct was perfectly justified in raising adverse inference against the petitioner. Accordingly, I finding no substance in the present petition dismissed the same vide short order, dated 19-5-2009 and these are the reasons for the same. H.B.T./J-7/K Petition dismissed.