2003 PLP 1067 (YLR)

4. In post remand proceedings, learned District Judge set aside the impugned order dated 9‑3‑2001 passed by the Guardian Judge by reversing the finding on Issue No.

1. He proceeded to dismiss the application under section 25 of the Guardians and Wards Act filed by the petitioner. However, it was directed that the petitioner, father, can see the minor children at Karachi once in one month after giving prior intimation to the respondent.

5. The learned counsel for the petitioner contends that the case has not been decided by the First Appellate Court with judicious mind. There was a delay in tiling the appeal before the District Judge against the impugned order dated 9‑3‑2001 of the Judge, Family Court through which the custody of the minors was handed over to the petitioner and that the minors have been removed from Rawalpindi to Karachi. Minors are living with the aunt of Dr. Farhana Shaheen which will affect the welfare of the minors.

6. Conversely, the learned counsel for the respondent contends that the learned trial Court through the impugned order dated 9‑3‑2001 granted the custody of the minors to the petitioner only on sole ground under the Personal Law and has not taken into consideration the welfare of the minors. Reliance has been placed on the case reported as Syed Ali Mehdi v. Baqar Ali Rana, Additional District Judge and others 1998 MLD 1003 to argue that welfare of the minors is paramount consideration in the custody of minors. Further contends that the right of father to claim custody of the minors was not an absolute right. Reliance is placed on the case of Firdous Iqbal v. Shifaat Ali and other 2000 SCMR 838.

7. It is well‑settled law that the Guardian Judge could exercise parental jurisdiction over the ward and while exercising the jurisdiction of custody. Personal Law would not be allowed blindly or in automatic fashion but must be decided objectively. In case reported as Syed Ali Mehdi v. Baqar Ali Rana, Additional District Judge, Islamabad and others 1998 MLD 1003 it has been ruled that:‑‑ " .... Father, although had preferential right under Personal Law to get custody of male child after period of Hizanat was over yet welfare of minor was always paramount consideration while determining question of custody. Decision about welfare of minor being question of fact both Courts below had rightly determined that welfare of child demanded that he should be left in care and custody of his mother till he reached age of discretion‑‑‑No material or fundamental defect was, thus, pointed out in findings of Courts below so as to call for interference in extraordinary jurisdiction of High Court on Constitutional side." In case of Mst. Firdous Iqbal 2000 SCMR 838 (supra) it was ruled that right of father to claim custody of the minor son was not absolute right. Welfare of minor always a paramount consideration‑‑‑Father may disentitle himself to custody, on account of his conduct in ‑the light of the facts and circumstances of each case".

9. On the touchstone of section 25 of the Guardians and Wards Act, and the above stated reported authorities, I have examined the case and gone through the evidence. Before this Court in earlier round of litigation in Writ Petition No.3324 of 2001, the matter of custody was not seriously contested by Syed Tahseen Razi, petitioner, and the case was remanded and the only grievance was shown to the Court that despite numerous opportunities afforded to Dr. Farhana Shaheen, respondent, mother, for production of the children before the Court, they were not being produced. The petitioner did not raise any objection in setting aside the order of handing over of the custody to him by the learned District Judge and rehearing of the case.

10. During hearing of the case today, the petitioner is interested in meeting and seeing his children. He has shown the apprehension that the minors have been removed from the guardianship of the Islamabad Court and they may be taken out of the country.

11. Before parting with the judgment, I will pass an appropriate order regarding the schedule of meeting. At the moment, the impression that I have gathered during the hearing of the petition is that the petitioner is father and is interested in meeting with the minor sons. Even otherwise the learned District Judge on the basis of finding on Issue No. 1 has recorded a finding that: ‑‑ "In the present case, there is sufficient evidence on record to hold that it is in the welfare of the minors to be in the custody of the mother." The minors lived with their mother since their birth. If they are given to the father, naturally it will affect the welfare of the minors. The respondent is a doctor by profession and is an educated lady. She has a source of income and is imparting good education to the children. No doubt, Personal Law of the parties is to be considered while deciding the question of custody of minors, but, as stated above, the paramount consideration is the welfare of the minors. The petitioner also has stated before this Court that he is unable to bring the children from Karachi by Air every month as he is getting Rs.6,000 p.m. as salary. This also shows that the welfare of the minors demands that they should remain in the custody of the mother/respondent.

12. This brings me to the schedule of meeting to be settled between the parties. The petitioner being father has every right to meet his minor children so that they may not become stranger to him. For this purpose the following schedule of meeting is settled between the parties:‑‑ One meeting of children with the father at Islamabad in the office of the District Nazir in one month in presence of the police will be arranged by the learned District Judge, Islamabad. The expenses shall be borne by the father. Thereafter second meeting may be arranged at Karachi, and for this purpose Syed Tahseen Razi, petitioner/father of the minors, shall inform Mr. Tariq Mehmood Jehangiri, Advocate, learned counsel for the respondent/Dr. Farhana Shaheen one week prior to his intention to visit Karachi and Mr. Tariq Mehmood Jehangiri in response will settle the time, date and place of meeting of the children with the petitioner. This schedule shall be followed by the parties till the minors attained the age of majority. However, the parties with consent/contract in writing can change the schedule of meeting by informing the. Guardian Judge.

13. To secure the interests of minors, it is ordered that Dr. Farhana Shaheen respondent, shall surrender her passport and those of the minor children, to the Deputy Registrar (Judicial) of this Court. She shall surrender her passport and those of the minor children, to the Deputy Registrar (Judicial) of this Court. She shall also furnish a surety of Rs.1 million to the satisfaction of the said Deputy Registrar that she will not remove the above said minor children from outside Pakistan. With the above directions and in the terms, this writ petition is disposed of. H.B.T./T‑113/L Order accordingly.