2024 PLP 1433 (MLD)

Raheel Kamran, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed judgment dated 06.07.2023 passed by the learned Additional District Judge, Taunsa Sharif whereby her appeal against the judgment dated 27.04.2023 passed by the learned Guardian Judge, Taunsa Sharif about custody of minor namely Rukhsar Bano aged 2-1/2 years to her real father i.e. respondent No.3 was dismissed.

2. Learned counsel for the petitioner contends that impugned judgments of the learned Courts below are unsustainable as respondent No.3 is serving in Pakistan Army who is not residing within the village and is unable to devote time for proper upbringing of the minor, whereas the minor has been residing with her maternal grandmother since her birth. He maintains that no effort has been made by respondent No.3 to exercise his visitation rights during pendency of proceedings before the learned trial Court, learned Appellate Court or this Court, therefore, there is no bond of love and affection between minor and her father. He adds that application for custody of the minor has been moved with malafide to deprive maternal grandparents from custody of minor and entrust the same to her paternal grandparents which hardly serve welfare of the minor. Reliance has been placed on judgments in the cases of Raja Muhammad Owais v. Mst. Nazia Jabeen and others (2022 SCMR 2123) and Mst. Anwari Bibi v. Hidayat Ullah Khan and others (2020 MLD 302).

3. Conversely, learned counsel for the respondent No.3 has supported the impugned judgments for the reasons that stated therein. He has emphasized that not only father of the minor is her natural guardian who, in the absence of any disqualification in law, is entitled to her custody but he is with better means and resources to ensure welfare of the minor and her upbringing with the assistance of his mother and sister. He adds that the minor would be better off to be brought up in the company of her brother who is already in the custody of her father. It has been emphatically argued that custody of the minor could not be entrusted to maternal grandparents who are delinquent in upbringing their own granddaughter and litigation in this regard is pending adjudication before the learned Family Court which has been filed by their daughter-in-law for the provision of her maintenance. He maintains that in order to properly bring up his minor children, the respondent No.3 has applied for early retirement and his son has already been enrolled at F.G. Public School No.1 (Boys), Gujranwala Cantt since July 2023 where he is residing with his paternal grandmother and paternal aunt. Reliance has been placed on the case of Shabana Naz v. Muhammad Saleem (2014 SCMR 343).

4. Father of the minor, present in the Court, submits that he has not been allowed to meet the minor rather threats have been extended to him whenever he made any such attempt of visitation. Documents i.e. Fee Card of Muhammad Saqlain issued by F.G. Public School No.1 (Boys) Gujranwala Cantt, application regarding retirement submitted by the respondent No.3 and Residency Certificate are produced by the learned counsel for the respondent No.3, copies whereof has been retained and original documents have been returned to the learned counsel for the respondent No.3.

5. Arguments heard. Record perused with the able assistance of learned counsel for the parties.

6. Welfare of the minor is the primary consideration governing the grant of custody of minors. While this Court is of the considered opinion that in the absence of his disqualification, a father cannot be deprived of custody of the minor as ordinarily welfare of the minor lies with his or her parents. In exceptional cases and for valid reasons, a parent can be denied the right of custody while entrusting it to the grandparents, when it is absolutely necessary and in the welfare of the minor to do so. In the instant case, undisputedly the minor has been residing with her grandmother since her birth. She is of tender age of about 2 1/2 years. Undeniably, no emotional bond has been developed between the minor and her father and paternal relations, therefore, abrupt withdrawal of her custody from her maternal grandparents may be very traumatic for the minor. Additionally, documents qua early retirement of respondent No.3 and admission of brother of the minor in the F.G. Public School No.1 (Boys), Gujranwala Cantt do not form part of the evidence as those came into existence after decision of the Guardian Court. Therefore, to allow fair opportunity to either side, this Court deems it appropriate to remand the matter to the learned trial Court / Guardian Judge concerned for determination of custody of welfare of minor after permitting the parties to lead additional evidence as well as allowing respondent No.3 along with his mother and / or sister to exercise of his visitation rights vis-a- vis the minor twice every month on the weekends for two hours each time so that the bond of love and affection between the minor and her father is allowed to be developed. For that purpose, schedule of visitation shall be set down on an application to be moved by respondent No.3. The learned Guardian Judge shall ensure that visitation right is allowed to be exercised by the respondent No.3 without any hindrance or intimidation whatsoever. Accordingly, the impugned judgments shall be set aside and application of respondent No.3 shall be deemed to be pending before learned Guardian Judge concerned who shall decide the same afresh within a period of three months and a compliance report in that regard shall be submitted to the Deputy Registrar (Judicial) of this Court.

7. Disposed of. MQ/A-33/L Order accordingly.