Application for the custody of minor girl --- Due service --- Fair trial --- Service upon the defendant --- Presumption --- Mother and minor girl ................

 PLD 2023 Lahore 412

Application for the custody of minor girl --- Due service --- Fair trial --- Service upon the defendant --- Presumption --- Mother and minor girl were living at a place / district different from the place / district where the father moved application for custody .... Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree --- Petitioner / mother claimed that neither she was personally served nor she had any knowledge of the case proceedings --- Held , that primary controversy for the Court , in the present case , was that whether the mother was served in accordance with law before decree I was passed against her --- Without framing issues and recording evidence , the Court below had decided the factual controversy qua residential address of the mother / petitioner while relying on the photocopy of her alleged second marriage in district " K " , produced by the respondent / father --- Court also presumed the petitioner's knowledge of proceedings and service of summons on the basis that notice along with registered envelope AD were sent on her district ' K ' address and that notice was also proclaimed in the newspaper having been circulated / published from relevant division --- Neither the process server was ] produced as a witness , in the present case , to establish personal service of summons under S.8 of the Family Courts Act , 1964 , upon the mother / petitioner in accordance with law , nor any reference to his ( process server's ) report to the said effect had been made in the impugned order --- In the absence of any acknowledgement due available on record , service of the notice been presumed by the Court below merely on the basis of al receipt available on record --- Without establishing on not be served rd that the mother / petitioner could rsonally , reliance on publication of the notice could not be considered safe to presume service of the mother / petitioner , particularly when father / respondent himself alleged in his petition for custody that she was an illiterate villager --- High Court set - aside impugned order and allowed the application of mother / petitioner for setting aside ex - parte judgment and decree --- Application of father for the custody of minor girl . would be deemed to be pending , at the place mother and minor were residing , for decision afresh in accordance with law

Custody of minor girl --- Welfare of minor --- Decision upon the custody of minor girl , as far as practicable , must be made on merit on the basis of her welfare being paramount consideration in law .

Custody of minor girl --- Welfare of minor --- Due service --- Fair trial ---- Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree --- Held , that in the absence of proper service and adequate opportunity of hearing granted to both sides , any determination of welfare of the minor could not be termed as lawful and satisfying the requirement of fundamental right to fair trial as guaranteed under Art . 10 - A of the Constitution of Pakistan