2019 PLP 804 (MLD)

KHADIM HUSSAIN M. SHAIKH, J.

Through this petition, the petitioner Mst. Hira has called in question the judgment dated 23.05.2018 passed by the learned 7th Additional District Judge, Hyderabad in Family Appeal No.29 of 2018 re: Mst. Hira v. Muhammad Arif, whereby the said appeal was partially allowed.

2. Briefly, the facts of the case are that the petitioner Mst. Hira and the respondent No.2 Muhammad Arif got married on 25.05.2012 and after Rukhsati they started living together. Out of this wedlock, they were blessed with two children namely baby namely Dua and Muhammad Aashir, who are now aged about 5 years and four years respectively and are living with the petitioner. Afterwards, due to dispute arose between the parties, the petitioner leaving the house of the respondent No.2, is residing with her parents in Sachal Sarmast Colony SITE area, Latifabad, Hyderabad. The respondent No.2 Muhammad, Arif filed Guardianship Application No.191 of 2015 re: Muhammad Arif v. Mst. Hira in the Court of Civil and Family Judge-XI, Hyderabad under the provisions of the Guardians and Wards Act, 1890. Petitioner Mst. Hira filed her written statement/objections in denial to the allegations leveled by the applicant. The learned Trial Court framed the following issues:-

1. Whether the welfare of minor namely Dua and Muhammad Ashir lies with applicant and he is entitled for custody of minors?

2. What should the order be?

3. At the trial, the respondent No.2 examined himself at Ex.18 and then his learned counsel closed his side vide statement dated 16.9.2017 at Ex.19. Petitioner Mst. Hira examined herself at Ex.20 and where after her learned counsel closed her side vide statement dated 19.12.2017 at Ex.21. The learned Trial Court after hearing the parties counsel dismissed the guardianship application of the respondent No.2 Muhammad Arif, but allowed temporary custody/visitation rights to the respondent No.2 being father with his children named above vide judgment dated 10.01.2018.

4. The petitioner filed Family Appeal No.29 of 2018 against the said judgment dated 10.01.2018, passed by the Trial Court, which was partially allowed, curtailing the period of temporary custody/visitation rights of the respondent No.2 with his children named above, enhancing the amount of expenses of his meeting with them vide judgment dated 23.05.2018, passed by the learned VII-Additional District Judge, Hyderabad. The petitioner has filed this petition.

5. It is, inter alia, contended by the learned counsel for the petitioner that the learned Courts below have not properly appreciated the evidence brought on record; and, that the respondent No.2 is not entitled to the visitation rights with his children namely Dua and Muhammad Aashir. She, therefore, prays that the petition may be allowed and the impugned judgments passed by the learned Courts below may be set aside.

6. Learned counsel for the respondent No.2 has mainly contended that the learned trial Court and the appellate Court by allowing the visitation rights to the respondent No.2 Muhammad Arif, who is real father of the minors, has committed no illegality; and, that the petitioner has filed this petition with intention to deprive the respondent No.2 Muhammad Arif of his meeting with his minor children. He, therefore, prays that the petition may be dismissed.

7. I have considered the submissions of the learned counsel for the parties and have gone through the material available on the record.

8. From a perusal of the record, it would be seen that the learned Guardian Court after appreciating the evidence brought on record dismissed the guardianship application filed by the respondent No.2 Muhammad Arif, but only allowed visitation rights to the respondent No.2 Muhammad Arif with his minor children namely Dua and Muhammad Aashir vide judgment dated 10.01.2018. The learned family appellate Court after reappraisal of the evidence brought on record partially allowed the family appeal filed by the petitioner, upholding the judgment of learned trial Court, but with some modification, whereby the meeting of the respondent No.2 with his above minor children on 2nd and 4th Saturday of every month from 11-00 a.m. to 1-00 pm and the temporary custody of the said minors on first day of Eid-ul-Fiter and Eid-ul-Azha from 12:00 am to 5:00 pm and last ten days of summer vacation and for five days of winter vacations as per schedule of the minors with direction to the respondent to pay Rs.1000/-per meeting to the petitioner, allowed by the learned Trial Court vide judgment dated 10.01.2018, has been modified by the learned appellate Court vide impugned judgment dated 23.5.2018, reducing and restricting two meetings into one meeting on first Saturday of each month from 11.00 a.m. till 2.00 p.m. and temporary custody of the minors on the 2nd day of Eid-ul-Fitr and Eid-ul-Azha from 1.00 p.m. to 5.00 p.m. and also reducing the period of temporary custody of the said minors from 10 days to 05 days in the summer vacation and from 5 days to 3 days in the winter vacation, enhancing the amount of visitation expenses from Rs.1000/- to Rs.2000/- on each meeting to be paid by the respondent No.3 to the petitioner; and that too after furnishing solvent surety in the sum of Rs.300,000/- and execution of PR bond in the like amount to the satisfaction of the concerned Trial Court; admittedly, the respondent No.2 Muhammad Arif is real father of minors namely Dua and Muhammad Ashir and his visitation rights involving the rights of minors/wards towards their father, whose fatherly supervision, channelizing their activities, which would be beneficial for the welfare of the minors/wards, cannot be denied, more particularly, when undisputedly the respondent has been providing maintenance to the said minors. Patently, the petitioner has attempted to deprive the respondent/ father, who is not alleged to be at fault in providing maintenance to the petitioner for his children, of his love and affection with his children named above, by filing this petition seeking permanent detachment of the respondent father from his children just to satisfy her ego, which would also deprive the children of their rights towards their father. The learned counsel for the petitioner has also not been able to point out any illegality or perversity in the impugned judgments and decrees passed by the learned Courts below attracting interference of this Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Under these circumstances, I am of the humble view that this petition besides being devoid of merit also lacks bona fide and the same is liable to be dismissed. These are the reasons of short order announced by me on 28.09.2018, whereby this petition was dismissed, with no order as to costs. MQ/H-2/Sindh Petition dismissed.