Abrupt Withdrawal of Custody of Minor from Maternal Grandparents is not possible

 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

Granting Custody while granting visitation

 PLJ 2020 Islamabad 113

Present: Miangul Hassan Aurangzeb, J.

SANA AIZAD and others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE VII/GUARDIAN APPELLATE COURT, ISLAMABAD-WEST and others--Respondents

W.P. No. 744 of 2019, decided on 24.7.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Petition for appointment as guardian by father--Disposed of on statement of father--Divorce notice--Filling of petition for guardianship of minor by parents of minor--Petitions were consolidated--Petition filed by petitioner was dismissed--Appeal--Dismissed--Concurrent judgments--Adequate visitation schedule--It is an admitted position that Waliyaan’s application for a visa to United Kingdom was turned down--During pendency of earlier guardianship petition filed by Petitioner No. 1 and custody petition filed by Respondent No. 3, it was agreed that Petitioner No. 1 could retain Waliyaan’s custody provided she took him along with her to United Kingdom--Changed circumstances in which Petitioner No. 1 was abroad while Waliyaan was in custody of his maternal grandparents, justified Respondent No. 3 in seeking Waliyaan’s custody--No advantage could be taken by petitioners from Respondent No. 3 pursuant to his statement agreeing before learned Guardian Court that Waliyaan’s custody should remain with Petitioner No. 1--Since Waliyaan was unable to proceed to United Kingdom to join his mother/Petitioner No. 1, judgments of learned Courts below did not suffer from any irregularity in granting Waliyaan’s custody to his father/Respondent No. 3--Respondent No. 3 is in any manner unable to care for his minor son--Learned Guardian Court has been mindful as to Waliyaan’s grandparents’ right to meet their grandchild--For this purpose, learned Guardian Court has fixed an adequate visitation schedule-- Learned Guardian Court, in an appreciable manner, has also held that Petitioner No. 1 would be entitled to Waliyaan’s custody when visits Pakistan--As regards learned Guardian Court’s declaration that Petitioner No. 1 “shall not be entitled for permanent custody in case of her return permanently to Pakistan”, I cannot bring myself to agree with same--Learned Guardian Court could not impose such an embargo on Petitioner No. 1 while determining a visitation schedule--In event Petitioner No. 1 petitions a Guardian Court whenever she returns to Pakistan, it will be for such a Court to determine in existing circumstances as to in whose custody Waliyaan’s welfare would be best served--Petition was partly allowed.          [P. 118] A, B, C, D & E

Mr. Mujtaba Haider Sherazi, Advocate for Petitioners.

Ms. Jamila J. Aslam, Advocate for Respondent No. 3.

Date of hearing: 01.07.2019.

Judgment

Through the instant writ petition, the petitioners impugn the order dated 20.02.2019, passed by the Court of the learned Additional District Judge, Islamabad, whereby their appeal against the consolidated judgment and decree dated 24.09.2018, passed by the learned Family Court, Islamabad, was dismissed. Vide the said consolidated judgment and decree, the learned Family Court dismissed the petition filed by Petitioner No. 1 for her appointment as the guardian of the minor Waliyaan Ahmad, and allowed Respondent      No. 3’s petition for the custody of the said minor in accordance with the terms of the compromise set out in the said judgment and decree.

2. The facts essential for the disposal of the instant petition are that Respondent No. 3 (Imtinan Ahmed) and Petitioner No. 1 (Sana Aizad) got married on 18.02.2010. The couple were blessed with a son, Waliyaan Ahmad, who is presently almost 08 years of age. The strained relations between the couple lead to their separation.

3. Petitioner No. 1 has been awarded a degree of Master of Science in the Faculty of Life Sciences Computational Modicular Biology by the University of Manchester, United Kingdom. In the year 2015, Petitioner No. 1 was awarded a scholarship for a Ph.D program at the University of Derby, United Kingdom. Petitioner No. 1 was unable to take Waliyaan along with her to the United Kingdom due to the rejection of his visa.

4. On 23.01.2016, Petitioner No. 1 filed a petition before the learned Guardian Judge for her appointment as Waliyaan’s guardian. This petition was resisted by Respondent No. 3, who had filed a petition, seeking Waliyaan’s custody. On 10.09.2016, Respondent No. 3 recorded his statement to the effect that in the interests of Waliyaan’s welfare, he would have no objection if Petitioner No. 1 were to take Waliyaan along with her to the United Kingdom provided she would care for Waliyaan in a befitting manner and would bring him to Pakistan on an annual basis to meet Respondent No. 3, and return to Pakistan upon completion of her course work. It was also recorded that Petitioner No. 1 would take Waliyaan as her dependant and in the event, Waliyaan was unable to get a visa for the United Kingdom, his custody would be handed over to Respondent No. 3.

5. Learned counsel for Petitioner No. 1 before the learned Guardian Judge also recorded his statement that Petitioner No. 1 would bring Waliyaan from the United Kingdom to meet with Respondent No. 3 on an annual basis; that Respondent No. 3 could meet Waliyaan in United Kingdom whenever he wanted; that Petitioner No. 1 would return to Pakistan on the completion of her course work; and that Respondent No. 3 would render assistance in obtaining Waliyaan’s visa to United Kingdom.

6. After the recording of the above-mentioned statements, the learned Guardian Court, vide order dated 10.09.2016, disposed of Petitioner No. 1’s guardianship petition and Respondent No. 3’s custody petition in terms of the said statements.

7. Unfortunately, on 09.11.2016, Waliyaan’s visa application was rejected and so was his review application. Petitioner No. 1 had proceeded to United Kingdom without Waliyaan.

8. On 10.01.2017, Respondent No. 3 issued a divorce notice to Petitioner No. 1. The marriage between Petitioner No. 1 and Respondent No. 3 has ended.

9. On 09.03.2017, Petitioner No. 1 filed another guardianship petition before the learned Guardian Court, Islamabad seeking to be appointed as Waliyaan’s guardian. Perusal of the said petition shows that it had been sent by Petitioner No. 1 from the United Kingdom. It was attested by the Consular Attache, High Commission for Pakistan, London. Since Waliyaan was left by Petitioner No. 1 with her parents, i.e., Petitioners No. 2 and 3 herein, a petition seeking Waliyaan’s custody was filed by Respondent No. 3 on 25.04.2017 before the learned Guardian Court, Islamabad. This petition was contested by Petitioner No. 1’s parents by filing a written reply. These two petitions were consolidated, vide order dated 04.07.2017.

10. After the recording of evidence, the learned Guardian Court, vide judgment and decree dated 24.09.2018, dismissed Petitioner No. 1’s guardianship petition and allowed Respondent      No. 3’s petition for Waliyaan’s custody. The said judgment and decree was assailed by Petitioner No. 1 and her parents before the Court of the learned Additional District Judge, Islamabad. Vide judgment and decree dated 20.02.2019, the learned Appellate Court dismissed the said appeal. The said concurrent judgments and decrees passed by the learned Courts below have been assailed by the petitioners in the instant writ petition.

11. Learned counsel for the petitioners, after narrating the facts leading to the filing of the instant petition, submitted that the concurrent judgments and decrees of the learned Courts below are based on misreading and non-reading of the evidence on the record; that the learned Courts below erred by not appreciating that Respondent No. 3 had willfully abandoned Waliyaan; that during the subsistence of the marriage between Petitioner No. 1 and Respondent No. 3, the latter did not show any interest in Waliyaan’s welfare; that until Petitioner No. 1 completes her Ph.D in the United Kingdom, Waliyaan can be taken care of by his maternal grandparents; that during the pendency of the proceedings before the learned Guardian Court and the learned Appellate Court, Waliyaan’s custody had remained with his maternal grandparents, who were able enough to care for their grandchild’s welfare; and that Respondent No. 3 has defaulted in paying Waliyaan’s maintenance.

12. Learned counsel for the petitioners further submitted that Petitioner No. 1 had filed the earlier guardian petition in order to enable Waliyaan to obtain a visa so as to enable him to travel to the United Kingdom along with Petitioner No. 1; that earlier Respondent No. 3 had agreed to leave the minor with Petitioner No. 1; that in the earlier round of litigation before the learned Guardian Court, Respondent No. 3 had agreed for Waliyaan to be with his maternal grandparents while Petitioner No. 1 was abroad; that Waliyaan’s visa was rejected due to Respondent No. 3 not showing any cooperation in the matter; and that Respondent No. 3 had refused to give an affidavit which was an essential requirement for Waliyaan’s visa. Learned counsel for the petitioners prayed for the writ petition to be allowed and for the concurrent judgments and decrees passed by the learned Courts below to be set-aside.

13. On the other hand, learned counsel for Respondent No. 3 submitted that in the earlier proceedings before the learned Guardian Court, Respondent No. 3 had agreed for Waliyaan to remain in Petitioner No. 1’s custody provided the latter took Waliyaan along with her to the United Kingdom; that Respondent No. 3 did not create any obstacle in the grant of a visa to Waliyaan; that Petitioner No. 1’s counsel had delayed the provision of the draft of the affidavit required to be sworn by Respondent No. 3; that Respondent No. 3 had never agreed to a situation where Petitioner No. 1 would be abroad and Waliyaan would be in his maternal grandparents’ custody in Pakistan; that Respondent No. 3 had a priority over Petitioners No. 2 and 3 regarding Waliyaan’s custody; that Waliyaan’s welfare would be best served if his custody was handed over to Respondent No. 3, who works as a Consultant from home; that Petitioners No. 2 and 3 had resisted Respondent No. 3’s attempts to meet with Waliyaan; and that the learned Courts below did not commit any jurisdictional irregularity so as to warrant interference in their concurrent judgments. Learned counsel for Respondent No. 3 prayed for the writ petition to be dismissed. In making her submissions, learned counsel for Respondent No. 3 placed reliance on the judgments of Mst. Zahida Kiani and another vs. Capt. (Rtd.) Shahid Ali Khan (1993 SCMR 2303), Shabana Naz vs. Muhammad Saleem (2014 SCMR 343), Ghulam Mustafa vs. Shamim Akhtar and 2 others (2017 YLR Note 45) and Ganj Bibi vs. Muhammad Younas and another (2011 CLC 1062).

14. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

15. The facts leading to the filing of the instant petition have been set out in sufficient detail in Paragraphs 2 to 10 above, and need not be recapitulated.

16. It may be mentioned that during the course of the arguments, learned counsel for Respondent No. 3 handed over cheque No. 57434393, dated 14.05.2019 for an amount of Rs. 2,80,000/- drawn on Standard Chartered Bank, Islamabad in favour of Petitioner No. 1 to her learned counsel. According to the learned counsel for Respondent No. 3, this amount was being paid in discharge of Respondent No. 3’s obligation to pay for Waliyaan’s maintenance.

17. Presently, Petitioner No. 1 is in the United Kingdom, whereas Waliyaan is in the custody of his maternal grandparents i.e., Petitioners No. 2 and 3. It is an admitted position that Waliyaan’s application for a visa to the United Kingdom was turned down.

18. During the pendency of the earlier guardianship petition filed by Petitioner No. 1 and the custody petition filed by Respondent No. 3, it was agreed that Petitioner No. 1 could retain Waliyaan’s custody provided she took him along with her to the United Kingdom. The fact that Waliyaan’s visa application was rejected and he is now in his maternal grandparents’ custody has totally changed the circumstances in which Respondent No. 3 had agreed for Waliyaan’s custody to remain with Petitioner No. 1. The changed circumstances in which Petitioner No. 1 was abroad while Waliyaan was in the custody of his maternal grandparents, justified Respondent No. 3 in seeking Waliyaan’s custody. Rebus sic stantibus (Latin for “thing thus standing”), is the legal doctrine allowing for a contract or a treaty to become inapplicable because of a fundamental change of circumstances. It is my view that the said doctrine is attracted in the case at hand. No advantage could be taken by the petitioners from Respondent No. 3 pursuant to his statement agreeing before the learned Guardian Court on 10.09.2016 that Waliyaan’s custody should remain with Petitioner No. 1. Since Waliyaan was unable to proceed to the United Kingdom to join his mother/Petitioner No. 1, the judgments of the learned Courts below did not suffer from any irregularity in granting Waliyaan’s custody to his father/Respondent No. 3.

19. The material on the record has not caused me to form a view that Respondent No. 3 is in any manner unable to care for his minor son. The learned Guardian Court has been mindful as to Waliyaan’s grandparents’ right to meet their grandchild. For this purpose, the learned Guardian Court has fixed an adequate visitation schedule. The learned Guardian Court, in an appreciable manner, has also held that Petitioner No. 1 would be entitled to Waliyaan’s custody when visits Pakistan. As regards the learned Guardian Court’s declaration that Petitioner No. 1 “shall not be entitled for permanent custody in case of her return permanently to Pakistan”, I cannot bring

myself to agree with the same. The learned Guardian Court could not impose such an embargo on Petitioner No. 1 while determining a visitation schedule. In the event Petitioner No. 1 petitions a Guardian Court whenever she returns to Pakistan, it will be for such a Court to determine in the existing circumstances as to in whose custody Waliyaan’s welfare would be best served.

20. In view of the above, the instant petition is partly allowed in that the declaration of the learned Guardian Court while fixing a visitation schedule that Petitioner No. 1 “shall not be entitled for permanent custody in case of her return permanently to Pakistan” is set-aside. The judgment of the learned Appellate Court, to the said extent is also set-aside. Other than this, the concurrent judgments of the learned Courts below are upheld. There shall be no order as to costs.

(Y.A.)  Petition partly Allowed