1980 PLP 726 (SCMR)

Sami Hayat, Advocate Supreme Court for Respondent. Date of hearing : 19th December, 1979. NASIM HASAN SHAH, J.‑In this case the custody of the two minor sons of the parties, namely, Mohammad Imran and Masud Baig was granted to the mother (respondent herein) but an arrangement was arrived at between the parties in the course of the proceeding before the High Court which broadly speaking was to the effect that the minor sons shall get education in the Aitchison College as Boarders at the expense of the petitioner (father) and the parents would have the right to take the children to their respective homes on alternative Sundays during the working Sessions. As for the winter and summer vacations the children were to be kept by the parents alternatively. The father, or in his absence, the grandfather was to come to collect the minors from the College and keep them at their home for half the vacation and thereafter send them to the mother for the other half. This arrangement for keeping the children alternatively was to continue with regard to Eid holidays also. The father of the boys (the petitioner herein) feeling dissatisfied with this arrangement which was arrived at on 8th June, 1972 and is reproduced in the final order of the High Court dated 26th March, 1974, filed a petition for special leave to appeal mainly on the ground that as the minors are now 14 and 13 years old he was entitled to their custody. During the pendency of this petition, an application was moved under Order XLIX of the Supreme Court Rules for "bringing important facts relevant to the case to the notice of the Court". In this application it was inter alia stated that the petitioner had been meeting the expenses of the boys' stay as boarders in the Aitchison College with great difficulty. He had to pay a sum of Rs. 64,418.19 during the calendar years 1972‑76 and upto August, 1977, and that the expenses for the subsequent period were rising day by day, that he had now been transferred to Lahore and his monthly salary after deduction of income‑tax and Provident Fund etc, came to less than 2,000 which was hardly enough to meet his ordinary house hold expenses and he was, thus, absolutely unable to meet the expenses of the boys' stay as boarders in the Aitchison College. He, consequently, prayed that this Court may terminate the arrangement made to keep the boys as boarders in the Aitchison College and permit them to live with the petitioner. Notice of this application was issued to the respondent and both the parties are present before us today and have been heard. The learned counsel for the petitioner has again laid stress upon the high cost of educating the children in the Aitchison College as boarders and prayed that the boys should be allowed to stay with the petitioner and their custody handed over to him as they were now over seven years. He, however, admitted that the moat important consideration in these matters is the welfare of the minors. On the other hand the mother made an offer that she was prepared to pay the educational expenses of the children if they were allowed to reside with her. It is an admitted position that the petitioner has married again and has two children from the second marriage. The mother, who herself is a doctor and is employed at Lahore, is agreeable to bear the expenses for the schooling of the boys provided they are allowed to reside with her. After some discussion at the bar parties have a arced that the children may reside with the mother who shall continue to retain their custody but the father should be allowed to meet the children and, keep them with him during the holidays according to the arrangement made in the order of the High Court when the children were being educated as boarders at his expense, namely, he or his father can take them to their house on alterna tive Sundays and also for half the vacations during the summer‑winter and Eid holidays. It is clearly understood that he will be absolved from incurring the expenses of education of the children. We would accordingly substitute the above arrangement for that made in the High Court. This petition is converted into an appeal and disposed of in the above terms. The patties are left to bear their own costs. Order accordingly.