2019 PLP 662 (MLD)

QAZI MUHAMMAD AMIN AHMED, J.

In the wake of failure before a learned Addl. Sessions Judge at Rawalpindi, Muhammad Shakir Khan, petitioner herein, seeks issuance of a direction for production of his daughter Areeja Fatima, aged about 13, presently residing with her maternal aunt Sana Siddiqui respondent. It was alleged downstairs that the girl was forcibly taken away on 25-1-2019 while she was attending her school, however, when issue came up before the learned Addl. Sessions Judge, it transpired that the petitioner lived in United Arab Emirates for good while his wife suffered from mental trauma and in this backdrop, the girl long stayed with her aunt seemingly under a consensual arrangement. The minor was sent for when she vehemently resisted her return in the parental fold and, thus, the learned Judge having found the request inexpedient declined the same. Learned counsel for the petitioner contends that the petitioner being real father is natural guardian of the child and, thus, entitled to her custody in preference to the respondent, therefore, intervention by this Court in exercise of its extraordinary jurisdiction would be most called for.

2. Heard.

3. No doubt under the personal law, the petitioner being real father is preeminently placed to claim custody of her daughter, however, his entitlement is subordinate to the paramount consideration of welfare of the minor; personal law prevails in case the claimants are otherwise identically placed and, thus, the learned Addl. Sessions Judge in the peculiar facts and circumstances of the case was well within the remit of law as well as wisdom to suggest recourse to the Guardian Court for settlement of controversy. The child appears to be emotionally attached with the respondent and, thus, an incremental approach for her transition into the family fold would be a wiser course than to abruptly snatch her to rejoin her father; this cannot be done without inflicting an emotional trauma and setback to the girl, presently studying in one of the best seats of learning in the town. Even otherwise, extraordinary jurisdiction of this Court is not to be exercised in every run of the mill case of custody while pre-empting jurisdiction of a tribunal statutorily designated to settle claims of custody through a procedure conducive for the child to adapt him/herself to find a comfortable place in an uncongenial contest. It has been held in the case of Shoukat Masih v. Mst. Farhat Parkash and others (2015 SCMR 731), as under:-- "Be that as it may we find that through the impugned order passed by the High Court a minor girl has been given in the custody of her real mother and even if there are some questions regarding proper exercise of jurisdiction by the High Court in the matter still we would not like the little girl to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody." View taken by the learned Additional Sessions Judge is not open to any legitimate exception, calling for interference by this Court. In the facts and circumstances of the case, given the age of the minor and position taken by her before the Court below, it would be more expedient for the Guardian Judge to settle the issue. The petitioner may approach the learned Guardian Judge, if so advised and in case such a course is adopted, his plea for custody along with all collateral matters/reliefs shall be attended without being influenced by any observation made hereinabove. W .P. N o.418 of 2019 fails. Dismissed in limine. MWA/M-37/L Petition dismissed.