2012 PLP 609 (SCMR)

JAWWAD S. KHAWAJA, J.

The petitioner Muhammad Nadeem Qadir is father while the respondent Mst. Sofia Rasool Qureshi is mother of the two minors namely Affan Muhammad Hafeez (son) and Adeena Hafeez (daughter). It is of relevance that the petitioner had filed an application seeking custody of the minors. He had also filed an application praying that the respondent be retrained from removing the two minors to a place outside the jurisdiction of the Court. The learned Guardian Judge dismissed the application for customs vide order dated 31-3-2008. The petitioner then filed an appeal, which was dismissed by the learned Additional District Judge, vide order dated 2-12-2008. The Writ Petition (No.1670 of 2009) assailing the judgments of the Guardian Judge and the appellate Court was also dismissed vide impugned judgment dated 24-6-2011.

2. The petitioner impugns the three judgments noted above. The facts of the case are straightforward. The learned Judge in the High Court has observed as follows:-- "The record further reveals that at that juncture the petitioner did not make any attempt by filing an application before the Court for restraining the departure of the minors from jurisdiction of the Court, as such no restraint was in existence at the time when the minors left Pakistan. Now the petitioner beating about the bush for the return of the minors from abroad for which this Court does not see any reason to accept the request of the petitioner. The respondent belongs to a well educated family having sufficient means to maintain the children, who are also residing in a better atmosphere than existing in this country. Mere fact that the society where the children are now residing is an un islamic society is no ground for the said purpose. The minors have long disassociation from their father as such the petitioner may be a stranger to them. Moreover, the atmosphere in the family of the petitioner is not congenial where the minors if brought back could feel comfortable. The petitioner at present has no such sources for keeping up the education of the children in the foreign institutions where now they are getting their education in proper manner. Keeping all these facts in view it deems appropriate to agree with the concurrent findings of the Courts below as it is the demand of the welfare of the minors. Mere fact that the petitioner is the father of the minors and is paying the maintenance allowance to them is not sufficient to hand over the minors at this juncture to him."

3. It has been argued by the learned counsel for the petitioner that the High Court proceeded on the erroneous premise that the petitioner had not filed any petition for custody of the minors or to restrain the respondent from removing the children from the jurisdiction of the Court. The learned counsel has referred to page No.146 of the paperbook. We note that the petitioner had in fact filed an application before the learned Guardian Judge praying that the respondent be restrained from removing the children to a place outside the jurisdiction of the Court. Learned counsel for the respondent states that the respondent had taken the children to America prior to an order on the said application. This itself is conduct which amounts to depriving a father from having visiting rights with his children. The petitioner, we note, has throughout been agitating his right of custody and/or visiting rights, but without success.

4. We also note that the reasons which have prevailed with the learned Judge in Chambers in the High Court are strange to put it mildly if there is a long disassociation between the father and the minor children, it is attributable to the respondent and not the petitioner. It is the respondent who has taken the children to America. Secondly, the observation made by the High Court that "the children are residing in a better atmosphere than existing in this country" has not been borne out from the record. There is no evidence to this effect. In fact the respondent herself did not appear as a witness nor did any attorney appear on her behalf. It will be seen that even her father did not appear as her witness. On the other hand, the petitioner led evidence to show that he is depositing the amount of maintenance and to date more than Rs.7 lacs has been deposited, but he has not been allowed visiting rights.

5. When questioned about the unnatural state of affairs noted above, learned counsel for the respondent states that the respondent is willing to ensure visiting rights to the petitioner. This being the case, the three impugned orders are set aside. The parties are directed to appear before the learned Guardian Judge-I, Lahore on 6-3-2012. The learned Guardian Judge shall thereafter ensure a proper schedule of visiting rights for the petitioner. The application for custody filed by the petitioner shall be deemed to be pending and shall be decided by the learned Guardian Judge, expeditiously.

6. For the foregoing, this petition is converted into appeal and allowed in the above terms. M.W.A./M-12/SC Appeal allowed.