Custodial Rights of Maternal Grandparents

 PLJ 2024 Lahore (Note) 126

[Multan Bench, Multan]

Present: Raheel Kamran, J.

Mst. AMEER MAI etc--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 11228 of 2023, decided on 20.2.2024.

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

----S. 25--Constitution of Pakistan, 1973, Art. 199--Application for custody of minor--Pendency of litigation--Appeal--Dismissed--Visitation schedule--Maternal grand parents--Visitation rights--Challenge to--Undisputedly minor had been resided with her grandmother since her birth--She was of tender age of about 2½ years--No emotional bond had been developed between minor and her father and paternal relations, abrupt withdrawal of her custody from her maternal grandparents might be very traumatic for minor--Documents qua early retirement of Respondent No. 3 and admission of brother of minor in F.G. Public School No.1 (Boys), Gujranwala Cantt did not form part of evidence as those came into existence after decision of Guardian Court--High Court deemed it appropriate to remand matter to trial Court concerned for determination of custody of welfare of minor after permitting parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à-vis minor twice every month on weekends for two hours each time so that bond of love and affection between minor and her father was allowed to be developed--Petition disposed of.               

                                                                                  [Para 6] A, B & C

Mr. Muhammad Nadeem Fareed, Advocate for Petitioners.

Rao Muhammad Adnan, Advocate for Respondent No. 3.

Date of hearing: 20.2.2024.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed judgment dated 06.07.2023 passed by the learned Additional District Judge, Taunsa Sharif whereby her appeal against the judgment dated 27.04.2023 passed by the learned Guardian Judge, Taunsa Sharif about custody of minor namely Rukhsar Bano aged 2½ years to her real father i.e. Respondent No. 3 was dismissed.

2. Learned counsel for the petitioner contends that impugned judgments of the learned Courts below are unsustainable as Respondent No. 3 is serving in Pakistan Army who is not residing within the village and is unable to devote time for proper upbringing of the minor, whereas the minor has been residing with her maternal grandmother since her birth. He maintains that no effort has been made by Respondent No. 3 to exercise his visitation rights during pendency of proceedings before the learned trial Court, learned Appellate Court or this Court, therefore, there is no bond of love and affection between minor and her father. He adds that application for custody of the minor has been moved with malafide to deprive maternal grandparents from custody of minor and entrust the same to her paternal grandparents which hardly serve welfare of the minor. Reliance has been placed on judgments in the cases of Raja Muhammad Owais vs. Mst. Nazia Jabeen and others (2022 SCMR 2123) and Mst. Anwari Bibi vs. Hidayat Ulah Khan and others (2020 MLD 302).

3. Conversely, learned counsel for the Respondent No. 3 has supported the impugned judgments for the reasons that stated therein. He has emphasized that not only father of the minor is her natural guardian who, in the absence of any disqualification in law, is entitled to her custody but he is with better means and resources to ensure welfare of the minor and her upbringing with the assistance of his mother and sister. He adds that the minor would be better off to be brought up in the company of her brother who is already in the custody of her father. It has been emphatically argued that custody of the minor could not be entrusted to maternal grandparents who are delinquent in upbringing their own granddaughter and litigation in this regard is pending adjudication before the learned Family Court which has been filed by their daughter- in-law for the provision of her maintenance. He maintains that in order to properly bring up his minor children, the Respondent No.3 has applied for early retirement and his son has already been enrolled at F.G. Public School No. 1 (Boys), Gujranwala Cantt since July 2023 where he is residing with his paternal grandmother and paternal aunt. Reliance has been placed on the case of Shabana Naz vs. Muhammad Saleem (2014 SCMR 343).

4. Father of the minor, present in the Court, submits that he has not been allowed to meet the minor rather threats have been extended to him whenever he made any such attempt of visitation. Documents i.e. Fee Card of Muhammad Saqlain issued by F.G. Public School No. 1 (Boys) Gujranwala Cantt, application regarding retirement submitted by the Respondent No. 3 and Residency Certificate are produced by the learned counsel for the Respondent No.3, copies whereof has been retained and original documents have been returned to the learned counsel for the Respondent No. 3.

5. Arguments heard. Record perused with the able assistance of learned counsel for the parties.

6. Welfare of the minor is the primary consideration governing the grant of custody of minors. While this Court is of the considered opinion that in the absence of his disqualification, a father cannot be deprived of custody of the minor as ordinarily welfare of the minor lies with his or her parents. In exceptional cases and for valid reasons, a parent can be denied the right of custody while entrusting it to the grandparents, when it is absolutely necessary and in the welfare of the minor to do so. In the instant case, undisputedly the minor has been residing with her grandmother since her birth. She is of tender age of about 2½ years. Undeniably, no emotional bond has been developed between the minor and her father and paternal relations, therefore, abrupt withdrawal of her custody from her maternal grandparents may be very traumatic for the minor. Additionally, documents qua early retirement of Respondent No.3 and admission of brother of the minor in the F.G. Public School No.1 (Boys), Gujranwala Cantt do not form part of the evidence as those came into existence after decision of the Guardian Court. Therefore, to allow fair opportunity to either side, this Court deems it appropriate to remand the matter to the learned trial Court/Guardian Judge concerned for determination of custody of welfare of minor after permitting the parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à- vis the minor twice every month on the weekends for two hours each time so that the bond of love and affection between the minor and her father is allowed to be developed. For that purpose, schedule of visitation shall be set down on an application to be moved by Respondent No.3. The learned Guardian Judge shall ensure that visitation right is allowed to be exercised by the Respondent No. 3 without any hindrance or intimidation whatsoever. Accordingly, the impugned judgments shall be set aside and application of Respondent No. 3 shall be deemed to be pending before learned Guardian Judge concerned who shall decide the same afresh within a period of three months and a compliance report in that regard shall be submitted to the Deputy Registrar (Judicial) of this Court.

7. Disposed of.

(Y.A.)  Petition disposed of

A Registered Nikahnama Does not need corroboration

When a registered Nikahnama is presented in the court presumption of law is that it is a legal document unless challenged at any forum. If a Nikahnama is challenged, then the evidence of Nikah Registrar and witnesses of Nikah is vital. In normal cases a Nikahnama doesn't need any corroboration when it is registered under the due process of law.

A Nikahnama holds more sanctity if a Marriage Registration Certificate (MRC) is also part of record. A Marriage Registration Certificate is a document that updates the marriage of parties in the record of NADRA. It is a separate document having computerized bar code reader at its one side. It can be obtained from the same union council where the Nikah is registered.

Similarly the Nikahnama holds more sanctity if in the CNIC records of parties their status of being married to certain person is updated and is visible on the Computerized National Identity Card. In the presence of such documents even if a Nikahnama is challenged, it holds strong presumption of genuineness.

For more you can always consult lawyergolra@gmail.com

Regards,
Salman Yousaf Khan (Golra)
International Family Lawyer
+92-333-5339880 

Pre-Trial Reconciliation Proceedings

There is a wonderful concept of pre-trial reconciliation proceedings in Family Suits. As the name suggests it means reconciliation proceeding before the Trial. The benefit of this kind of proceeding is to end up the dispute before the trial if possible.

More than half of the family suits end up at this stage. The reason is that the judges, lawyers and parties try to end up the dispute at this stage if possible. This stage comes up after the filing of written statement by the defendant.

If reconciliation fail at this stage, the Family Court is bound to frame issue or decree the suit depending upon circumstances. A Family Judge is empowered to adjourn the matter to a future date if he/she sees any room for reconciliation at this stage.

For more consult lawyergolra@gmail.com

Regards,
Salman Yousaf Khan (Golra)
International Family Lawyer
+92-333-5339880

Grandparents are not responsible for maintenance in presence of father

PLJ 1991 SC 316

[Appellate Jurisdiction]

Present: MUHAMMAD AFZAL ZULLAH, CJ AND ABDUL CjADEER CHAUDHRY J. GHULAM NABI-Appellant

versus

MUHAMMAD ASGHAR and 3 others-Respondents Civil Appeal No.291 of 1989, dismissed on 13.3.1991.

[On  appeal  from judgment  dated   18.12.1988  of Lahore  High  Court, Rawalpindi Bench in writ petition No. 475 of 1988].

(i) Maintenance--

—Minor children-Grant of maintenance to-Challenge to-Contention that in case children are being provided sustenance by their grand-parents, father should not be burdened with duty to maintain his own children-Held: In presence of father, grand-parents, whether on paternal or on maternal side, will not be more responsible for maintaining their grand-children as compared to father's duty to maintain his own children—Appeal dismissed. [P.318JB&C

(ii) Past maintenance--

—Minor children-Past maintenance of-Gfant of-Challenge to-Contention that past maintenance could not be granted to children of appellant—Supreme Court, while permitting grant of past maintenance, did not make any exception with regard to children as distinguished from maintenance to a wife-­Otherwise too, it looks unfair that while wife gets past maintenance, childrenshould be deprived of this benefit—Held: There is no force in argument oflearned counsel.     [P.318]A

Mr. M.S. Mahboob, Advocate, Supreme Court, and Mr. Manzoor Ilahi, Ex-

AOR for Appellant.

Hafiz Saeed Akhtar, Advocate, Supreme Court, and Cli. AkhtarAli, AOR for

Respondents.

Date of hearing: 13.3.1991.

JUDGMENT

Muhammad Afzal Zullah, CJ.—This appeal through leave of the Court is directed against the judgment of the High Court; whereby in a case of maintenance, a Constitutional (Writ) Petition filed by the respondents' side (children of the appellant) was allowed and they were granted past maintenance, subject to the law of limitation. Leave to appeal was granted on noticing the facts and the point involved as under:-

"Mst. Razia Begum filed a suit against the petitioner claiming maintenance for herself and for three minor children for September 1982 onwards. After contest, the suit was dismissed by the Judge, Family Court, Jhelum, by judgment dated 15.3.1988. However, on appeal, the Additional District Judge, Jhelum reversed the decreee passed by the trial Court and allowed the maintenance to the minor children from the date of the institution of the suit onwards. Still aggrieved, the respondents filed a constitutional petition and prayed for an order for grant of past maintenance from September 1982. The learned Judge in Chamber allowed the petition and awarded maintenance w.e.f. 3.9.1982. Thepetitioner has questioned this judgment in this petition for leave to appeal.

"Learned counsel for the petitioner mainly relies on a judgment of the Lahore High Court in the case of Mst. Ghulam Fatima v. Sheikh Muhammad Bashir (PLD 1958 (W.P.) Lahore 596) in support of his submission that past maintenance could not be granted, wherein relying on the Hedaya (Hamilton's Second Edition, page 149) Bailie's Muslim Law (Third Impression, 1957, page 460 and Urdu translation of Durral Mukhtar by Maulvi Khurram Ali, it was observed at page 599 of the report as follows: -

"It also seems clear from the authorities on Hanafi Law that neither the child nor the person who maintains it can claim past maintenance from the father unless the same has been previously fixed either by a decree of the Court or by the father himself. This proposition seems to flow from the propositions mentioned in the preceding paragraph and is supported by the exposition of the law relating to maintenance in the text-books".

"The learned counsel further submitted that the cases relied upon by the learned Judge in the High Court are distinguishable, inasmuch as in Muhammad Nawaz v. Mst. Kliurshid Begum and 3 others (PLD 1972 Supreme Court 302) the order for past maintenance passed by theArbitration council was not disturbed by this Court, but in the presentcase, even the Additional District Judge did not pass any order for past maintenance. It is also ubmitted that the High Court exceeded its powers under Article 199 of the Constitution".Learned counsel to start with reiterated the same argument which was noted in the leave grant order with reference to the decision of this Court in the case ofMuhammad Nawaz. In support of his contention that the past maintenance could not be allowed to the children of the appellant, learned counsel cited some other cases from the Lahore and Sind High Courts. However, after considerable discussion he had to agree that this Court while permitting the grant of past maintenance did not make any exception with regard to the children as distinguished from the maintenance to a wife. Otherwise too it looks unfair that while the wife gets past maintenance the children should, as contended by the learned counsel, be deprived of this benefit. Cases are not lacking where, while granting maintenance to the wife, Courts have taken into account her needs, vis-a­vis, any minor child which she might be supporting in the same house-hold. Accordingly, we have not been able to find any force in the argument of the learned counsel.

Next, the learned counsel also arguned that in case the children are being provided sustenance by their maternal grand parents, the father should not be burdened with duty to maintain his own children. His main contention is that when somebody is voluntarily maintaining minor children who are close relations, this would not infringe any rule of Muslim Law of Maintenance. He also tried to support this proposition by citing case law including the well known case of Haji Nizam Klian v. Additional District Judge, Lyallpur and others(PLD 1976 Lahore 930).

Although leave was not granted to examine this point we permitted the learned counsel to advance the same so as to clarify the legal position. No doubt grand-parents, if affluent, will be obliged to maintain grand children if they are destitute. But the command would issue in this behalf when there is no other nearer relation and/or more responsible in this behalf. Accordingly, when a specific proposition was put to the learned counsel in this behalf hie could not advance his argument any further. The question posed was: whether, in presence of the father the grand-parents, whether on the paternal or on the maternal side, will be more responsible for maintaining their grand-children as compared to the father's duty to maintain his own children. Learned counsel without hesitation admitted that the priority-wise it would be the duty of the father.In the light of the foregoing discussion we find no force in this appeal. The same, accordingly, is dismissed with no order as to costs.

(MBC)          (Approved for reporting)               Appeal dismissed.