1989SCMR216 (PLP)

SHAFIUR RAHMAN, .I.‑‑The Petitioner No. 1, a mother, and her father seek leave to appeal against the judgment dated 22‑5‑1988 of the High Court of Sind, whereby their Constitutional Petition was dismissed. The Petitioner No. 1 was married to respondent No. 3 on 24‑11‑1978 and the minor male child was born on 14‑‑1‑1980, whose custody is now the subject matter of the dispute in the present case. The Petitioner No. 1 was divorced on 11‑12‑1980 and the respondent No. 3 had remarried while the Petitioner No. 1 has not. The Petitioner No. 1 has got the minor admitted in the P.A.F. Model School. The respondent No. 3 moved an application in 1984 claiming the custody of the minor. The application was contested: In awarding the custody of the minor to the respondent No. 3, the Guardian Judge was guided by considerations which appear as hereunder:‑‑ "I might agree with the contention of the learned Advocate for the defendant in all aspects except the two, such as the change of parentage of the minor and insufficient accommodation. Undoubtedly the minor is taking education in P.A.F. School and his welfare is not being suffered on this account but the fact that name of his father has been written to be Mohammad Ashfaq Ansari cannot be ignored, which not only adversely affects the personality of the minor but also his future prospects in life." The learned Additional District Judge upheld the order giving the following as the grounds for the decision:‑‑ "(i) It is, therefore, clear that the mother of the child had refused access to his father which amounted to refusing to permit him to exercise the control on his son and this is sufficient ground for making application for custody of the child within the meaning of section 25(1) of the Act." "(ii) Apart from this it is also an admitted position that during the pendency of the proceedings and soon after the pronouncement of the judgment impugned in this appeal the ward has crossed the age of seven (7) years and consequently the appellant who is the mother of the ward has lost her right of entitlement to the Hizanat of her son to keep the custody. Under the law a mother is entitled to Hizanat of her daughter till she attains puberty and of her son till he attains the age of seven (7) years." The High Court declined to interfere with the orders on the grounds appearing in the judgment as hereunder:‑‑ "In a Constitutional Petition, the High Court cannot interfere with the concurrent finding of fact unless the same is contrary to the evidence on record or appears to be perverse which is the present case is lacking. Another aspect which requires consideration is that admittedly the boy has crossed the age of 7 years and according to the learned counsel for the petitioners his present age is about 8 years. In this view of the matter, the petitioner No. 1 is not entitled to the custody of the minor in preference of the father, respondent No. 3, in the absence of any evidence on record that he has lost his right to the custody on account of certain acts and omissions on his part. There is nothing on record to suggest that it is so I am inclined to hold that even otherwise the above petition has become in fructuous. The petition is, therefore, dismissed but there will be no order as to costs." The learned counsel for the Petitioner appearing before us contended that the welfare of the minor has been subordinated to the technical inconsistencies which were capable of being explained. For example, according to the learned counsel, the area in occupation of the mother and her father was taken to be 80 sq. ft. when it was by a clerical mistake so mentioned instead of 80 sq. yards.' Secondly, discrepancy about the parentage which had been utilized before the Guardian Judge, was only a misdescription and could be explained satisfactorily. What has not, according to the learned counsel, been taken note of, was that the minor has now a step mother who had an issue to look after. Having not lived ever with the father or his family, the abrupt transfer of custody was likely to create great complications for him. After hearing the learned counsel for the Petitioner, eve secured the appearance of respondent No.3 m person m order to examine whether there. was any possibility of smooth transfer of custody from one to the other without disturbing the child emotionally or in his studies. We find that it is not possible for the parties or their counsel to come to any understanding or agreement. 1n the circumstances we will grant leave to examine whether the welfare of the minor has been given paramount consideration in the adjudication that has taken place. Leave to appeal is granted. The Appeal shall be heard on present record and at an early date. The minor shall be asked to appear on the date of hearing appeal which shall be fixed without disturbing his education or attendance at School. The interim order passed with regard to custody of the minor and his visits shall remain with modification to the extent that petitioner No. 1 shall send the minor to respondent No. 3 on weekly holiday in the evening of the Thursday and the boy shall return to the mother before sunset on every Friday. This will apply to the other one‑day holidays as well. For longer holidays the two counsel shall decide upon any workable arrangement. acceptable to both the parties and in case they fail to reach an agreement, they shall refer the matter to the Court. Security shall be in the sum of Rs.500 (Five hundred only). M.Y.H./S‑210/S Leave granted.