2009 SCMR 1062 (PLP)

MIAN HAMID FAROOQ, J.

Petitioner seeks leave to appeal against order, dated 11-2-2009, whereby the learned Lahore .High Court at Lahore allowed respondent No. l's constitutional petition (Writ Petition No.17469 of 2008) and modified order, dated 11-11-2008 passed by the learned Additional District Judge, Lahore.

2. The respondent, after dissolution of marriage with the petitioner, filed an application under section 25-A of the Guardians and Wards Act seeking custody of his minor daughter, namely Ayesha Ahmed, together with an application under section 12 of the Guardians and Wards Act for her temporary custody, however, before the said applications could be decided, he filed yet another application praying that he may be permitted to visit the minor. The learned Guardian Judge granted right of visitation to the respondent viz.:-- "once in a month in the Court Room from 10-00 a.m. to 12 noon on first Saturday of every month" vide order, dated 25-9-2008. Respondent's appeal was partly allowed by the learned Additional District Judge, vide order, dated 11-11-2008, in the following manner:-- "The appellant may have meeting with his minor daughter on the first Saturday and third Saturday of every month for a period of two hours either within premises of learned trial Court or at the -office/chamber of counsel for the respondent and in this respect, parties may submit their understanding to the learned trial Court. With this observation, the appeal is partly accepted. Copy of this order along with original record be sent to the learned trial Court forthwith, whereas file of this appeal be consigned to the record after its due completion. (underlining is for emphasis)." The respondent still dissatisfied challenged the said order through filing the constitutional petition (Writ Petition No.17469 of 2008), the learned Lahore High Court at Lahore partly allowed the same and modified order, dated 11-11-2008 of the learned Additional, District Judge, vide impugned order, dated 11-2-2009, in the following way:-- "Therefore, this petition also is allowed and the impugned order is modified to the extent that the petitioner shall not remove the minor from the domain and jurisdiction of Guardian Judge, Lahore, execute a surety bond in the sum of Rs. one million to the satisfaction of the Guardian Judge, Lahore, the name of the minor shall be placed on the Exit Control List forthwith, the Deputy Registrar (Judi.) to ensure the compliance of this order. The venue of the meeting shall be house of the petitioner in Lahore, the minor shall be accompanied by a Bailiff of the Court of Guardian Judge, who will remain present during the course of meeting the petitioner shall surrender his passport to the Bailiff, which shall' be returned to him upon return of custody of the minor to the petitioner mother. Time of the meeting shall be from 10 a.m. to 4 p.m. first and third Saturday as granted by the learned Additional District Judge, Lahore." Hence the present petition.

3. Learned counsel for the petitioner submitted that proposed arrangement of visit evolved in the impugned order is not practicable, it is not in the interest and welfare of the minor keeping in view her age and that the impugned order if allowed to be executed would lead to many complications. Learned counsel for the respondent, on the other hand, while relying upon the judgment reported as Shireen Qasim Khan Ashfaque Ahmed Sharif 2008 SCMR 1514, submitted that as the learned High Court made certain arrangements for meeting of minor with respondent-father, therefore, it should not be interfered with by this Court.

4. We have heard the learned counsel for the parties and examined the available record. Learned Additional District Judge while modifying the order passed by the learned Guardian Judge allowed the respondent to meet his minor daughter on first and third Saturday of every month for a period of two hours, which order was further modified by the learned High Court, in exercise of its constitutional jurisdiction,4whereby certain modalities were formulated, inasmuch as, the respondent was required to execute a surety bond in the sum of Rs. one million, the name of the minor was placed in Exit Control List, bailiff was to supervise the meeting and the venue of the meeting was fixed the house of the respondent in Lahore. Having given some thoughts to the arrangement proposed by the learned Judge in Chambers, we feel that the said arrangement may lead to numerous complications as it may not be practicable and result to some mishap to the disadvantages of the minor girl, who is now aged nearly six years. The learned Additional District Judge in a straightforward manner provided reasonable ,and practical visitation rights to the respondent, which should have satisfied him, but the learned Single Judge, we say so with respect, further complicated the matter. The proposed arrangement made in the impugned order was neither just nor equitable and proper, as the agonies of both the parties were in fact multiplied. We are not persuaded to maintain the said order. Under the circumstances, case of Shireen Qasim Khan (ibid) relied upon by learned counsel for respondent is of no avail to the respondent. We feel that under the circumstances, the arrangement made by the learned Additional District Judge was fair, equitable and was not only in the interest and welfare of the minor, but also reasonably protected the rights of both the parties, therefore, we while converting this petition into appeal are persuaded to set aside the impugned order.

5. In view of the above, the present petition is converted into appeal, allowed and the impugned order, dated 11-2-2009 is set aside and that of the learned Additional District Judge dated 11-11-2008 is restored with the slight modification that the respondent shall meet the minor on the first and third Saturday of every month for a period of two hours in the Court Room/Chamber of the learned Guardian Judge-I, Lahore. The learned Guardian Judge seized of the matter is directed to decide the main petition filed under section 25-A of the Guardians and Wards Act on or before 30th of June, 2009 under intimation to this Court, through its Deputy Registrar, Branch Registry, Lahore. M.B.A./S-26/SC Order accordingly.