1988 PLP 1430 (SCMR)

SHAFIUR RAHMAN, J.‑‑This petition calls in question an order of the Lahore High Court dated the 18th of March, 1987, whereby the Appellate order dated 10‑12‑1985 passed by the District Judge setting aside and substituting the order of the Guardian Judge, Sialkot, dated 14‑7‑1985 was dismissed leaving the parties to bear their own costs. The petitioner is the mother of the minor Umar Khalid born out of her wedlock with the respondent on 13‑10‑1976. Their marriage had taken place on 5‑10‑1974 but was dissolved on 3‑11‑1985 after a suit for dissolution of marriage had ended in a compromise. The parties had then agreed that Umar Khalid then aged 5 years shall remain with the mother. On 30‑1‑1984 after having executed in writing that his own mother was seriously ill and on death‑bed and she could be saved only if his son Umar Khalid was produced before her, the respondent father of the minor allegedly got the minor from the custody of the mother with a view to take him to Abbottabad. He did not thereafter return him to the custody of the mother. She, therefore, instituted an application under section 25 of the Guardians and Wards Act in the Court of the Guardian Judge, Sialkot. In resisting the application, apart from the preliminary objections raised by the respondent, he took up the plea that the compromise entered into by him and the statement made with regard to the custody of the minor was against law and neither he nor the minor was bound by it. He also denied having taken away the minor on the pretext that his own mother was ill and was on death‑bed. He claimed that the undertaking was forged and set up the plea that the mother of the petitioner herself had written letters to him that as Umar Khalid was over 7 years, he should be taken away by the father and got educated. The following issues were framed‑‑ "(1) Whether the petitioner lacks cause of action? OPR. (2) Whether the Court lacks jurisdiction? OPR. (3) Whether the respondent gave any writing before the Family Court, Sialkot and divested the custody of the minor Umar Khalid in favour of the petitioner, if so, its effect? (4) Whether the respondent obtained custody of the minor from the petitioner in writing or orally? If so its effect? OPA. (5) Whether it is in the welfare of the minor Umar Khalid that his custody should be returned to the petitioner? OPA. (6) Relief." After recording the evidence, the Guardian Judge, Sialkot, by his judgment dated 11‑7‑1985 allowed the application giving the mother the custody of the minor. All the issues were decided in her favour and against the respondent. On appeal with regard to the conduct of the father and his qualification to bring up the child, the District Judge observed as follows "No doubt, the 'above facts show that the appellant cheated the National Exchequer. I feel force in the arguments of the learned counsel for the respondent that had the appellant been a civil servant, he would have been behind the bars for committing such fraud, but in my opinion, this act of the appellant does not by any stretch of imagination show that he is unfit to properly groom, educate and bring up the minor. He is still in service. As already stated, he has made reasonable arrangements for the education of the minor who is even keeping good health." Finding that the mother had remarried and there was nothing on the record to show that so had the father and primarily keeping in view the welfare of the minor, the District Judge reversed the finding on issue No.5 and allowed the custody of the child to remain with the father but recognized the right of the mother to meet the son off and on. The Court held that‑‑ "In view of this, some arrangement to provide opportunity to the respondent to meet the minor is legally and morally required and duty is cast upon the Court to make such arrangements. In the light of what has been stated above, I accept the appeal, set aside the impugned order but direct the appellant to produce the minor Umar Khalid on 15th January, 15th April, 15th July and 15th October every year in the Court of Senior Civil Judge/Judge Family Court, Sialkot or if any of the dates happens to be a closed day, then on the following working day, or if the Judge happens to be on leave, then before the Duty Judge, who shall make arrangements for meeting of the respondent with her above‑named son. The parties are left to bear their own costs." On a Constitutional petition filed by the petitioner, the learned Judge in the High Court examined the entire case of the parties afresh and came to the conclusion that there was nothing in the appellate order of the District Judge which could be said to be without lawful authority and hence dismissed the petition. In the petition before us the mother claimed that the meetings allowed by the District Judge were insufficient and could not have that beneficial influence on the child which the Court recognised as necessary for his balanced and proper upbringing. She wanted that the Guardian Judge's order with regard to custody be restored or in the alternative the arrangement of meeting with the ward may be modified in a suitable manner in the interest of justice and equity. Notice had issued to the respondent and the minor was also asked to be produced and he appeared before us and we put certain questions to him in order to elicit his responses to the wishes of both of his parents and his own attitude and outlook in the matter. The impression that we have gained from the attitude and the responses of the minor is that he is being brought up and indoctrinated in a manner to develop and exhibit stubbornness and intractability in expressing utmost revulsion and hatred against his own mother--something highly unnatural for a boy of his age, likely to ruin his) own personality and growth and also likely to destroy his future utility as a citizen of a free country. It is unfortunate that this happened during a period the father as natural guardian had been provided the maximum opportunity to bring him up, the minor being only a day scholar at the educational institution which he is attending In this background, we do not consider the arrangement approved of by the District Judge of occasional meetings between the mother and the child in the premises of the office for a few hours to be sufficient or satisfactory, for the end, namely, the welfare of the minor. We consider that the minor must devote at least a fortnight during the winter vacations and ten days during the summer vacations in the company of his mother for which we are told the house of his maternal‑; grand parents may be available at Lahore and serve as a convenient location for everyone concerned in the proceedings. We consider it necessary that the intimate, sobering and mellowing influence of the mother should be made available to the minor with a view to lend that balance and direction to his personality which he badly needs. We, therefore, convert this petition into appeal, accept it and modify the order of the first Appellate Court and direct that the minor should be made available for company of the mother for a fortnight during winter vacations and ten days during summer vacations each year and the District Judge, Lahore, shall enforce this order and ensure that it is implemented satisfactorily. This arrangement shall be given effect to forthwith as from the present winter vacations. This appeal is disposed of in these terms with no orders as to costs. M.I./A‑237/S Order accordingly.