1989 PLP 308 (MLD)

Nemo for Respondents. Dates of hearing: 31st October and 26th November, 1988. The petitioner, Mst. Shamim Akhtar, has moved this Constitutional petition praying therein that the orders dated 9‑12‑1986, 20‑5‑1987 and 11‑7‑1987 passed by respondent No. 1 and order dated 22‑11‑1987 passed by respondent No. 2 may be quashed and the case may be remanded for its decision afresh in accordance with law.

2. The case in brief is that respondent No. 3, Maqbool Alam being father moved a petition under section 25 of the Guardians and Wards Act, 1890 for obtaining the custody of his minor son, namely, Amir Maqbool aged 10/11 years in the Court of the learned Guardian Judge, Okara vide Annexure `A'. The petitioner contested the petition by filing written statement. The learned trial Court framed two issues arising out of the pleadings of the parties. The relevant issue is that whether it will be in the welfare of minor to hand over his custody to the petitioner? The evidence of the respondent was recorded by the learned trial Court and the case was adjourned for recording the evidence of the petitioner on 16‑11‑1986. However, the said date was declared as the closed holiday on account of Eid Milad‑un‑Nabi and as such the case was adjourned to 9‑12‑1986. On this date the petitioner fell seriously ill and could not attend the Court. The learned trial Court following the provision contained in Order XVII, rule 3, C.P.C. closed the evidence of the petitioner and fixed the case for 20‑12‑1987 for hearing arguments. The petitioner feeling aggrieved of the above order dated 9‑12‑1986 led a revision petition which was dismissed being incompetent by the learned District Judge on 22‑11‑1987. The petitioner moved a petition on 25‑1‑1987 `fore the learned trial Court praying that the earlier order dated 9‑12‑1986 closing his evidence his evidence may be recalled. It was mentioned in the application that or of serious illness, the petitioner could not come and produce he on the date fixed by the Court. It was requested that at least her statement may be recorded. However, the learned trial Court dismissed the application on 20‑5‑1987 on the ground that since the revision of the petitioner had been dismissed as such her application also deserved dismissal.

3. Learned counsel for the petitioner forcefully contends that in view of the peculiar facts and circumstances of the case the learned trial Court should have given an opportunity to the petitioner to produce her evidence. He next maintained that jurisdiction of the learned Guardian Judge was in the nature of parental jurisdiction and as such he should have taken lenient view and should have afforded an opportunity to the petitioner to prove her case. Learned counsel Stated that the date fixed for recording the evidence was declared a closed holiday and that on the next date the petitioner could not produce her evidence on account of her illness. This fact has not at all been considered by the learned trial Court. Learned counsel submits that even on merits, the petitioner had a very strong case inasmuch as the respondent has married for the second time and that out of the second wedlock he has two children.

4. A registered A.D. notice was issued to the respondent as well as his learned counsel on 26‑10‑1988, however, both of them failed to appear before this Court in obedience to the order of the Court. As per record, it is clear that the respondent was served with a registered A.D. notice. The name of the learned counsel for the respondent did figure in the daily cause list. I, therefore, proceed against him ex parte.

5. I have heard the learned counsel, for the petitioner and perused the record. The respondent produced Muhammad Yaqub in support of his case as P.W. 2 and he also appeared as his own witness as P.W.

1. The case of the respondent is that the minor in question is living with his grandmother. He stated that the petitioner married about 1‑1/2 years back and that she has given birth to a child. He further mentioned that the minor is not being properly brought‑up and that the petitioner has no source of income. In cross‑examination, the respondent expressed his ignorance as to where the minor was receiving his education. He admitted that he did not pay maintenance allowance to the minor after divorcing the petitioner. He conceded that he has married for the second time and out of this wedlock he has two children. He also stated that he did not know whether the petitioner had arranged religious and worldly education for the minor. He further stated that he cannot tell that the petitioner is living with the minor in Okara. Similarly, in cross‑examination Muhammad Yaqub P.W. 2 stated that he came to know through his neighbourers that the minor is not being educated. He stated that he did not know whether the minor was reading in some school or not. I have given my serious thoughts to the contentions raised and argued by the learned counsel for the petitioner. To begin with, I am not at all convinced with the evidence of the respondent. The respondent has stated that he did not pay any money to the minor to maintain him. Further he has been so negligent that he did not know as to where his son was getting his education. This shore the uncalled for and unwarranted attitude of the respondent‑father towards the welfare of his minor son. The respondent has married for the second time and that he has two issues out of this wedlock. It appears that the respondent is not at all interested in the welfare of the minor. From the evidence available on record it is clear that the respondent never attempted to see the minor son since the date he pronounced Talaq upon the petitioner. The minor at the moment is living happily with his maternal grandmother. It is true that the petitioner has re married with a stranger but the fact remains that the respondent has also married for, the second time and out of the wedlock two issues have born. In my considered view, the minor shall not be physically and mentally safe in presence of his step‑mother if his custody is handed over to the respondent. Unfortunately, the petitioner was not allowed opportunity to lead her evidence in rebuttal to the evidence produced by the respondent. The learned trial Court should not have closed the evidence of cite petitioner and he should have given at least one more opportunity to her to produce evidence. The learned counsel for the petitioner stated that on 9‑12‑1986 she fell ill and could not attend the Court. She has supported her statement with an affidavit. It is established that on 16‑11‑1986 the case was fixed for evidence but the same date was declared a closed holiday. Keeping this fact in view, there was justification for the learned trial Court to have given another opportunity to the petitioner to produce her evidence or at B least her own statement should have been recorded. This could have very easily been done by the learned trial Court on 20‑12‑1986 when the case was fixed for hearing arguments. The learned trial Court appears to have proceeded hastily without any justification. This was a case pertaining to guardianship and that the Court was under law required to proceed cautiously and carefully because the welfare of the minor was involved in the case. I am not at all convinced with the reasoning given by the two Courts below in depriving the petitioner from the custody of her minor child.

6. The upshot of the above discussion is that there is substance in the arguments of the learned counsel for the petitioner and as such the petition in hand is accepted and the orders of the learned Courts below are quashed by declaring the same without lawful authority and of no legal consequence. C Consequently, the case is remanded back to the learned Judge Family Court to decide the matter afresh after affording full opportunity to the parties to lead evidence in accordance with law. The learned trial Court is directed to dispose of the matter within four weeks without fail and a compliance report thereof shall also be submitted to this Court through the Registrar. M.Y.H./S‑344/S Case remanded.