P L D 2025 Peshawar 201 (PLP)

IJAZ ANWAR, J.

In a suit filed by the petitioner for custody of minor, the learned Judge, Family Court-IV, Peshawar vide order dated 27.07.2024 has passed the following order:- "Today, the case was fixed for visitation of minor as per schedule given by the High Court vide order dated 08.04.2024, however, the child was reluctant to go with the father and even the mother cannot help in the facilitation of visitation of minor with the father as the child was having panic attacks therefore, keeping in view the mental health of the child, this Court cannot use force in handing over the child to the father for visitation". Being aggrieved of the order dated 27.07.2024, petitioner filed appeal before the learned District Judge, Peshawar and vide judgment and order dated 20.09.2024 passed by the learned Additional District Judge-XV, Peshawar, his appeal was allowed/disposed of in the following manner:- "Keeping in view the above observations, the interference of this Court in the impugned order and judgment dated 27/07/2024 of the learned Trial court is inevitable in the circumstances, therefore, the same is set-aside and father is held entitled for visitation rights of his minor son. The appellant will collect the child/respondent No.2 on every Saturday of the week at 09:00 AM and retain and enjoy his company till 06:00 PM on Sunday and thereafter, will return the minor/respondent No.2 to the mother at her home. Learned trial Court is directed to implement the above schedule in letter and spirit but after obtaining the intelligent preference of the minor/respondent No.

2. Moreover, according to the above schedule, the appellant will pick and drop from and to the mother's house avoiding to take him to the Court keeping in view of the factor of welfare of the child".

2. Arguments heard and record perused.

3. Perusal of the record reveals that respondent No.1 has filed a family suit for dissolution of marriage, recovery of dower, dowry articles and payment of maintenance. The spouses are blessed with a son namely Muhammad Hiber, whose temporary custody is with respondent No.1 while petitioner claimed visitation rights ever since the filing of family suit. It was in the year, 2023 when firstly a visitation schedule was provided to the spouses and when it was changed, the respondent-wife questioned the same before the learned Additional District Judge-XI, Peshawar who set-aside the said order vide judgment and order dated 16.01.2024. The said appellate judgment and order was questioned before this Court in Writ Petition No.1754-P/2024. A Division Bench of this Court, while highlighting the welfare of the minor to have visitation of his parents regularly, disposed of the writ petition by providing a schedule of visitation vide judgment dated 08.04.2024. Para-6 of the judgment, being relevant, is reproduced as under:- "

6. In view of the above, this petition is allowed, the impugned order of the learned Appellate Court dated 16.01.2024 is set-aside and the visitation schedule of the petitioner-husband with the minor would be that the respondent-mother shall hand over the custody of the minor to the petitioner-husband at 09:00 AM on each Saturday and the petitioner-husband would return the minor to the respondent-mother at 05:00 PM on the same day and this schedule will be in field from 20.04.2024 till 29.06.2024 and thereafter, the learned Judge, Family Court shall see that as to whether the minor has got familiar with the petitioner-husband and if the opinion of the learned Judge, Family Court is in affirmative then the visitation may be extended to twenty-four (24) hours on each Saturday/Sunday. The learned Judge, Family Court is further directed to conclude the trial in the pending three suits at the earliest but within a period of six months positively with the compliance report to be submitted to the Additional Registrar (Judicial) of this Court".

4. Thereafter, petitioner, throughout, agitated for the visitation rights as per the schedule provided by this Court, however, the learned trial Court, quite belatedly, vide order dated 27.07.2024 observed that the minor has developed certain aversion towards his father and as such, he cannot be forced to have visitation with his father. On appeal, the learned Additional District Judge-XV, Peshawar vide judgment and order dated 20.09.2024, has passed a well-reasoned order observing that father, being natural guardian, is pressing for visitation with his son and has also commented upon the conduct of respondent No.1. On 15.11.2024, this Court also requested the President, Peshawar High Court Bar Association for mediation between the parties, however, on 17.02.2025, he (President) appeared before the Court and stated that due to non-cooperation of respondent No.1, he remained unable to resolve the matter between the parties. During the course of hearing, petitioner has also produced medical prescriptions of a Psychiatrist in support of his plea that forcing the minor would certainly create medical problems for him.

5. This Court understands that welfare of the child is paramount consideration in any decision regarding custody or visitation rights, however, at the same time, cannot ignore that non-custodial parent has an inherent right to maintain relationship with his/her children. This right is crucial for the emotional and psychological development of the child. The superior Courts of this country have consistently held that denying visitation rights can lead to emotional deprivation and parental alienation syndrome, where the child may develop negative feelings towards the non-custodial parent due to lack of interaction. As stated above, the welfare of the minor is the primary consideration when determining visitation rights. Courts must evaluate the potential impact of visitation on the child's well-being, especially if there are concerns about the child's mental health or safety. Thus, in such circumstances, Courts often establish structured visitation schedules to ensure that the non-custodial parent can spend meaningful time with the child and for this purpose, visitation may be arranged on weekends, during holidays or special occasions with specific times for pickups and drop-off. In cases, there are concerns about the child's safety or well-being, Courts may impose conditions on visitation. This could include supervised visits, the presence of a mental health professional or the requirement for the non-custodial parent to provide surety bonds to ensure the child's safe return.

6. In the case titled, "Mst. Madiha Younus v. Imran Ahmed (2018 SCMR 1991)", the Hon'ble Supreme Court of Pakistan has, while providing comprehensive plan in respect of the custody of minor, held that "visitation rights be balanced between both the parents of the child". Similarly, this Court, in the case titled "Haq Nawaz v. Mst. Zeba Rasheed and others (2023 YLR 816)", has held as under:-- "It is the inherent right of the parents to have visitation rights with his/her children and depriving any of the spouse of such visitation right, will certainly have an effect on the personality of the child/ minor. Admittedly, the minor shall carry the parentage with her throughout her life and such relation shall remain throughout as neither Islam nor the land laws allow such renunciation". Similarly, the Hon'ble High Court of Sindh, in the case titled "Mst. Muneeba Raheel v. Raheel Taufiq (2020 CLC 1353)", has held that "real father could not be deprived of his right to meet his daughter and/or spend time with her-such restraint would lead to/cause emotional deprivation of the minor daughter on both sides-Child not only needs love, affection, care and attention of a mother but also that of a father". Besides, in the case titled "Mst. Hira v. Additional Sessions Judge, Hyderabad and another (2019 MLD 804)", the Hon'ble High Court of Sindh (Hyderabad Bench) has held that "Muhammad Arif is real father of the 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 minors/wards cannot be denied". Similarly, the Hon'ble Lahore High Court, in the case titled "Mst. Maryam Masood v. Mughisuddin Mirza (2009 CLC 1443)", has also held that "the father, once the child has passed the age of seven years, must have maximum interaction with the minor even if the custody is with the mother, but this again should be subject to the rule of welfare of the minor; if for any reason it shall be against the noted principle, the court should either restrict the visitation or even can decline. But if it is otherwise, to prevent the minor from meeting with his father may cause an estrangement, prejudices, psychological intricacies and cobwebs in the mind of the child, which may ultimately prove to be a pivotal vice and a shortcoming in the growth of his personality on the count that he, at the relevant time, could not get sufficient love, affection and company of his father, which a normal child would enjoy".

7. Similar views were also reiterated by the superior Courts of this country in the cases titled "Mst. Ayesha Abdul Maleek v. Additional District Judge, Sahiwal and others (2020 YLR 401), Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi (1989 CLC 1377), Shahida Adnan v. Additional District Judge and others (2021 YLR 1915) and Abeera Khan v. Adnan Jameel (2019 CLC 1478)".

8. Apart from the above, the Hon'ble Supreme Court of India has also recognized the visitation rights of a child and has held in the case titled "Nutan Gautam v. Prakash Gautam (2019 INSC 467)" that "regarding visitation rights, the Court acknowledged that the respondent-husband as the natural father, was entitled to maintain a relationship with his son. It accordingly granted him visitation rights, allowing him to visit the child at Shahjanpur. Specifically, the father was permitted to take the child with him on Sundays and public holidays during his visits to Shahjanpur". Similarly, in the case titled "Sanghamitra Ghosh v. Kajal Kumar Ghosh (2006 INSC 864)", the Hon'ble Supreme Court of India has also held that "the father, Kajal, would be entitled to visitation rights at the residence of the mother on a mutually convenient date with prior permission-highlighting the Court's emphasis on preserving the father-child relationship while safeguarding the child's stability and comfort".

9. Thus, in the light of the above observations and pronouncements of the superior Courts, this Court upholds the findings of the learned Appellate Court with direction to chalk out a visitation schedule. Initially, a supervised visitation be scheduled during the Court hours in the presence of the respondent-mother and such visitation may continue for such period when the Court finds that the minor has developed intimacy with his father and thereafter, the Court may further amend the visitation schedule by enhancing the period of stay of the minor with his father.

10. This writ petition is disposed of in the above terms. UN/94/P Order accordingl