Custody of father in case of second wife

PLJ 2012 Karachi 139

Present: Shahid Anwar Bajwa, J

Dr. AISHA YOUSUF--Petitioner

versus

KHALID MUNEER and 2 others--Respondents

C.P. No. S-927 of 2010, decided on 14.12.2011.

Guardians and Wards Act, 1890 (VIII of 1890)--

----Ss. 12 & 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minor daughter--Dispute between father having second wife and real/divorced mother of minor--Absolute visitation right of father--Order of Family Court leaving custody of minor with mother, but prohibiting removal of minor from jurisdiction of Court without its permission while allowing father to have custody of minor on alternate Saturday in evening till next day evening, on second day of Eidduring day time, in summer vacation for one month, in winter vacation for seven days and on birthday--Order of Family Court was upheld with modification allowing custody of minor to father for a fortnight during summer vacation instead of one month--Mother's plea was that she being a Doctor by profession had got a job in Dubai and would like to take minor with her; that she would come back to Pakistan with minor every month and give full opportunity to father to meet minor; and that she was ready to give reasonable guarantee for such purpose--Validity--Father had not challenged concurrent findings of it Courts below allowing mother to have custody of minor-- Female had absolute right to roam in search of career and livelihood wherever she found same more apt and could not be deprived of custody of children if she wanted to serve abroad--Just as a father could not be asked to abandon his career if he wanted custody of minor, a mother could not be asked to forsake her career, if she wanted custody of minor--Mother in view of her career requirements had wanted permission and not a simple permission to go abroad--Purpose of a guarantee would be to act as deterrent--High Court allowed mother to take minor with her abroad subject to furnishing P.R. Bond for Rs. l million with one surety in like amount to the satisfaction of Nazir of the Court.            [Pp. 145, 146 & 147] A, B & C

PLD 2009 Kar. 50; 2003 YLR 1067; 2007 MLD 1692; PLD 2008 Kar. 499; 2003 CLC 1265; PLD 2004 SC 357 and 2000 SCMR 838 ref.

Mr. Zia Ahmed Awan, Advocate for Petitioner.

Mr. Muhammad Khalid, Advocate for Respondent No. 1.

Date of hearing: 10.11.2011.

Judgment

The petitioner was wife and Respondent No. 1 was the husband. Husband filed an application under Section 25 of the Guardians and Wards Act stating that he was married to the wife and out of this wedlock one female child, baby Fasiha, was born on 2nd February, 2006. The marriage broke up in 2008 resulting in divorce. Learned Family Judge dismissed the application under Section 25 of the Guardians and Wards Act and in conclusion observed as under:--

"The respondent has levelled several allegations upon the character, attitude and health upon applicant but failed to prove a single one. The attitude of respondent shows that she only wants to keep away child from her father due to her wrong presumptions and shows that she wants to deprive the applicant from his right to meet his daughter which is absolute right of father. The permanent custody of minor is disallowed to applicant as it is on record that he has got second marriage and step mother and other relatives cannot look after child like real mother and minor is in the care and custody of her mother since her birth and she is looking after her.

The applicant being father has right to meet minor and no one can deprived him for visitation rights as minor should be familiar with her father. The sufficient time has to be given to father for meeting with his children, hence respondent is directed to handover custody of minor to the applicant on alternate Saturday in the evening at 6-00 p.m. and taken back on next day i.e. Sunday in the evening at 6-00 p.m. it is also directed that on the Eid occasions, the custody of minors be handed over to applicant on second day of Eid in the morning at 10-00 a.m. and returned back in the evening at 7-00 p.m. on the same day. In the school summer vacations the custody of minor be handed over for one month to applicant and in the winter vacation the custody of minor be handed over for 7 days to the applicant on birthday meeting will be held on at 6-00 p.m. to 8-00 p.m. but both will not remove the custody of minor from the jurisdiction of this Court and if so desire they can take them with the permission of the Court. The respondent will inform regarding progress of education of minor to the applicant time to time."

2.  Thus, the custody of child was left with the mother and following visitation rights were allowed:--

(1)        Alternate Saturday from 6-00 p.m. to 6-00 p.m. of following Sunday.

(2)        On second day of every Eid custody of minor be handed over to applicant from 10-00 a.m. to 7-00 p.m.

(3)        During summer vacations custody of minor be handed over for one month to the applicant and in the winter vacation custody of minor be handed over for 7 days to the applicant.

(4)        Meeting on Birthday from 6.00 p.m. to 8.00 p.m.

(5)        Child is not to be removed from jurisdiction of the Court except with the permission of the Court.

3.  It is also stated that child maintenance at the rate of Rs. 10,000 was allowed with 20% annual increase. It is no body's case that this is not being regularly followed. This order was challenged in appeal and the Appellate Court maintained custody with the mother but modified visitation rights by directing custody during summer vacations from one month to a fortnight."

4.  This Constitutional Petition has been filed by the mother claiming that she is doctor by profession and she has got a job at Dubai. The following prayer has been made in the petition:--

"(a)      A writ in nature of mandamus may be issued thereby declare that the directions contained in the Judgment and Order of learned Respondents Nos. 2 and 3 for handing over the custody of the minor to Respondent No. 1 are without lawful authority and of no legal effects.

(b)        Consequently the impugned directions in the judgment passed by the learned Respondent No. 2 be declared illegal and the same may be deleted, being the negation of Issues Nos. 1 and 2 answered in favour of the petitioner."

5.  Learned counsel for the petitioner submitted that the petitioner has got a job in Dubai and she would like to take her daughter with her. Learned counsel stated that the petitioner will come back to Pakistan with the child every month and shall give full opportunity to the husband to meet the child. Learned counsel stated that petitioner is willing to give all reasonable guarantees in this regard. Learned counsel relied upon Mst. Nasima v. Hanif and 2 others PLD 2009 Karachi 50, SyedTahseen Razi v. Dr. Farhana Shaheen and another, 2003 YLR 1067.

6.  Learned counsel for the respondent submitted that in the order passed by the trial Court as maintained by the Appellate Court the petitioner is permitted to take the minor out of Pakistan only with the permission of the trial Court and she has remedy to approach the trial Court but she has chosen not to avail that remedy. He submitted that there cannot be any guarantee sufficient enough guaranteeing that a child will be allowed to spend time with the father. He submitted that welfare of the child is in giving equal opportunity to both the parents. Learned counsel submitted that there have been concurrent findings by the Court below which cannot be disturbed in exercise of constitutional jurisdiction. He relied upon Khalid Mahmood v. Tahira Yasmin and 2 others, 2007 MLD 1692. He submitted that law favoursregular visitation rights and in this regard relied upon Saad Amanullah Khan v. IVth Senior Civil Judge, (South) Karachi and 3 others, PLD 2008 Karachi 499. He also relied upon Muhammad Latif v. Additional District Judge, Shorkot, District Jhang and another, 2003 CLC 1265.

7.  Mr. Zia Ahmed Awan while exercising his right of reply, relied upon Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 and FirdousIqbal v. Shifaat Ali and others 2000 SCMR 838.

8.  I have considered the submissions made by the learned counsel and have also gone through the record.

9.  It may be appropriate at this stage to refer to the case-law relied upon by the learned counsel. First the case-law relied upon by the learned counsel for the petitioner. Facts of Mst. Nasima's case were that at the time of decision, age of the baby was four years. Child was a Canadian National having Canadian passport. The mother after birth of the child went to Tanzania where father was residing. Divorce took place in Tanzania. Memo. of Understanding was arrived at under the aegis of Ismaili Conciliation and Arbitration Board and such memo. was submitted to a Court in Tanzania which passed order accordingly. Under that order joint custody of the child was given to the parents. Day to day care of the child was given to the mother till the child attains the age of 7 years. Mother was also allowed to move the child to Pakistan. It was stated by the petitioner that though Tanzanian Court had ordered payment of maintenance of the child by father but father did not pay any such maintenance. The petitioner stated that she wanted to move to Australia and for obtaining Australian Visa she need NOC from her husband but her husband was deliberately withholding such NOC. She approached the Family Judge; such application was dismissed by the Family Court and it has observed that father was defaulting in payment under an order passed by a Tanzanian Court and therefore, the petitioner should approach the Tanzanian Court. Appeal was dismissed. A Single Judge of this Court framed the question whether order of the Tanzanian Court comes in the way of order appointing petitioner a sole guardian for the purpose of getting visa for Australia. Single Judge after observing that the order of the Tanzania Court has already been flouted by the father by not supporting the child financially, allowed the petition and permitted the mother to take the child to Australia.

10.  In Tahseen Razi's case (supra) there were two minor sons in custody of mother, the respondent. Father filed application before the Guardian Judge for custody of the minors. Family Court handed over custody of the minors to father which was challenged in writ petition and by consent matter was remanded to the Appellate Court. Mother was granted custody with the condition that mother would bring children with her from Karachi on the next date of hearing. The Appellate Court accepted the appeal and dismissed application of the father. The High Court observed that "the minors (had) lived with their mother since their birth. If they are given to the father, naturally it will affect the minors. Respondent is doctor by profession and is educated having her source of income and imparting good education to the children. No doubt, personal law of the parties to be considered while deciding the question of custody of minors as stated, the paramount consideration is the welfare of the minors. The petitioner has stated before this Court that he is unable to bring the children from Karachi by air every month as he is getting Rs. 6,000 per month (the father was living in Islamabad). This also shows that the welfare of the minors demands that they should remain in custody of the mother." Expenses of aalternate monthly meeting at Islamabad was ordered to be borne by the father and other monthly meeting at Karachi was ordered. The third case relied upon by learned counsel for the petitioner was Sardar Hussain's case (supra). During subsistence of marriage parents resided in United States. In 1995 due to strained relations mother came to Pakistan along with minors and settled at Peshawar. Father divorced the mother and also subsequently married. Application under Section 25 of the Guardians and Wards Act was allowed by the Family Court. Appellate Court allowed the appeal. Writ Petition was dismissed by the High Court. The Supreme Court did not interfere with the order passed by the High Court. However, it observed that if father wants visitation rights, he may approach the proper forum. In Firdous Iqbal's case (supra) the child was a boy of more than 10 years. Marriage took place in 1989 and divorce occurred in 1990 and child was left with the mother. Application under 25 of the Guardian and Wards Act was filed by the father. It was claimed by the father that since by that time the child had attained age of 7 years he was entitled to the custody. Family Court observed that the parties had separated in 1990 and since then the minor was living with the mother and it was therefore in the welfare of the minor that he should continue living with the respondent and dismissed the application. Appeal was dismissed by the Family Court but writ petition was allowed by the High Court. The Supreme Court observed as under:--

"The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the fight of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that the respondent father who sought custody of the minor neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage. Even then she had not been negligent in the care of her minor son. She had entrusted that duty to her mother and father and minor is being properly educated till date in a local school. All along this entire period, the father never bothered even to go to meet the minor muchless than providing maintenance to him, when the petitioner-mother sued him for providing maintenance allowance to the minor. It is only then that he had made an application for custody of the minor. Again the respondent father has also taken another wife who has got one or two children out of the wedlock. The second wife of the respondent is living in the village of the respondent whereas the respondent himself is an Army Personnel in service of Pakistan Army and remains under posting from one cantonment to another. Consequently, he would also not be present in the house where he proposed to lodge his son. The minor would be exposed to the onslaughts of the step-motherly treatment of his second wife. There would be no one to stop the step mother from the well known step motherly treatment. It was in these circumstances that the learned Courts below had concurrently found as a fact that the welfare of the minor lay in leaving him to the custody of the real mother through her parents rather than giving him to the respondent who is himself away from his household which had been left to the charge of the step mother."

11.  On the other hand, learned counsel for the Respondent No. 1 relied upon Khalid Mahmood's case (supra). It is a case relating to dowry and writ petition was dismissed on the ground that where the facts have been correctly discussed and appraised by the Courts below the High Court cannot interfere in its constitutional jurisdiction. In Saad Amanullah Khan's case (supra) baby girl was born in 1991 and a boy in 1993. After relationship soured application under Section 25 of the Guardians and Wards Act was filed by the father. The application was allowed ex parte. Mother filed application for setting aside ex parte decree which application was allowed. Such order was challenged in Constitutional Petition and this Court allowed the custody to remain with the father. The Appellate Court dismissed the appeal filed by the father, allowed him custody once a week from 9-00 a.m. to 6-00 p.m. and for 14 days during summer vacation. In Civil Revision this Court increased the visitation from one day per week to two days. Matter was taken to Supreme Court and the CPLA was disposed of on the basis of a compromise which included custody of the children with the father for two days each week and 14 days during summer vacations dissolution of marriage and dismissal of suit for restitution of conjugal rights. It was alleged by the petitioner that suddenly in March, 1997 the mother refused the petitioner to see or meet the children. A contempt application was filed in the Supreme Court. In the meanwhile the mother had filed an application alleging sexual abuse of the baby girl by the father. The Supreme Court disposed of contempt application and did not modify its earlier order. The case therefore clearly turns on different facts. In Muhammad Latif's case (supra) a Single Judge of Lahore High Court observed that the father and mother after divorce were living in the same neighborhood and held that father of the minor should have access to the minor son and contribute in his bringing up.

12.  In the present case two Court below have concurrently held that the custody shall remain with the mother and father has not challenged  such  findings. Therefore, as far as question of custody of the minor is concerned there does not appear to be any dispute between the parties. Regarding visitation rights the two Courts below have concurrently held that from 6-00 p.m. of alternate Saturday to 6-00 p.m. of following Sunday baby girl will be with the father. It is stated by learned counsel for the petitioner that mother is doctor by profession and she has obtained a job in Dubai and therefore prayed that she be allowed to take the baby toDubai. The requests seems to be perfectly reasonable. Just as a father cannot be asked to abandon his career if he wants custody of a child, a mother cannot be asked to forsake her career if she wants custody of the child. In these days a woman is equally entitled to pursue a fruitful rewarding and satisfying career. Gone arethe day when social norms used to be that a woman is expected to remain within four walls of a house and bring up children and father was free to roam the world in search of livelihood. Mandate of the Constitution as contained in Article 25 is that the State can make law for the protection and welfare of women and children. The Supreme Court has in Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another, PLD 1990 SC (sic) held that while it is permissible to practice discrimination in favour of women and children but it is forbidden against them. Therefore spirit underlining all the legislation has to be that if anything the Court should lean in favour of weaker Sections of society and it does not need any sophistry of arguments to see that women in this society, besides others, are certainly weaker section. Therefore, a female has as much right to roam in search of career and livelihood
(                                            ) wherever she finds it more apt and she cannot be deprived of custody of the children for mere reason that she wants to serve abroad. Therefore, in my opinion it would be fair and reasonable to permit the mother to take the child out of Pakistan along with her when she goes to Dubai for her employment.

13.  However, it would not be fair to expect her to bring the child to Karachi every fortnight. Mr. Zia Ahmed Awan, stated that she is prepared to do it once every month. The statement seems to be fair and reasonable. However in that event she will have do it once every month but for two days every month. Moreover she will be required to execute P.R. bond for Rupees One Million with one surety in the like amount to the satisfaction of the Nazir of this Court and if she fails to honour her commitment or any part of this order she should remain on notice that the bond and surety may be forfeited.

14.  As far as allowing the child with the father for 14 days during summer vacations and 7 days during winter vacation is concerned no interference with that aspect of the order is called for. As far as, allowing father custody on the day next to Eid and meeting on birthday   of   the   child   is   concerned   they   also  do  not require  any interference. However parties may, by mutual consent combine such visitations with monthly visits.

15.  Contention of the learned counsel for the respondent that there could not be any guarantee enough sufficient guaranteeing that the child will be allowed to spend time with the lather cannot be disputed but this is clearly true even if a guarantee is taken while the child is still in Pakistan. Purpose of a guarantee is to act as deterrent and one should not say anything more about a guarantee than that it has effect of being that a deterrent. Nothing can be an absolute bar: humans are too creative to claim so tight.

16.  Contention of the learned counsel for the Respondent No. 1 that application for permission to take the child abroad should have been filed before the Family Court is not relevant here. The petitioner in view of her career requirements wants the permission and not a simple permission to go abroad.

17.  Result of the above discussion is that this Constitutional Petition is disposed by permitting the mother to take the child out of the country subject to her furnishing P.R. bond and surety as stated above and visitation rights are modified from one day in a fortnight to two days every month while maintaining other visitation rights as discussed above.

(R.A.)  Order accordingly