PLJ 2023 Peshawar 16
Present: Ijaz Anwar, J.
HAQ NAWAZ--Petitioner
versus
ZEBA RASHEED and others--Respondents
W.P. No. 4928-P of 2021, decided on 21.3.2022.
Family Courts Act, 1964 (XXXV of 1967)--
----S. 5 r/w entry 5 Part-I of schedule--Constitution of Pakistan, 1973, Art. 199--Suit for grant of visitation rights--Application for recording of statement of minor to her willingness--Dismissal of suit on ground of maintainability--Inherent right of parents--It is inherent right of parents to have visitation rights with their children and depriving any of spouce of such visitation right, will certainly have an effect on personality of minor--High Court is not appreciating order of Judge, Family Court, whereby, even gift, given by petitioner, was returned--Both the orders of Courts below are against law and cannot be sustained--Petition allowed.
[Pp. 19 & 20] A & B
2020 CLC 1353, 2020 YLR 401 and 2019 MLD 804 ref.
Mr. Muhammad Tariq Afridi, Advocate for Petitioner.
Mr. Iftikhar Ahmad Siddiqui, Advocate for Respondents.
Date of hearing: 21.3.2022.
Judgment
This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-
"It is, therefore, most humbly prayed that on acceptance of this writ petition, this Hon'hie Court may graciously be pleased to:-
1. Declare the impugned orders of the Respondents No. 3 and 4 as illegal, without lawful authority, ultra-vires and of no legal effect and claim of the petitioner may kindly be declared with cost throughout".
2. Facts leading to the institution of this writ petition are that initially petitioner has filed a suit family suit alongwith an application for interim relief against the Respondent No. 1 for visitation with his daughter/Respondent No. 2 before the learned Judge, Family Court, Peshawar. Respondent No. 1 was summoned by the learned Family Court who appeared and contested the suit and application by filing written statement and written reply, besides, also submitted an application for recording the statement of Respondent No. 2/minor with regard to her willingness or otherwise for meeting with the petitioner. The aforesaid application was replied by the petitioner, however, vide order dated 30.06.2021, the learned Trial Court issued direction for the production of minor. On 03.07.2021, the learned Family Court recorded the statement of the minor in Chamber and dismissed the suit of the petitioner on the ground of maintainability. Being aggrieved, petitioner filed appeal before the learned District Judge, Peshawar who entrusted the same to the learned Additional District Judge III, Peshawar for its disposal and vide the impugned judgment dated 06.10.2021, the same was also dismissed. Hence, this writ petition.
3. Arguments heard and record perused.
4. Perusal of the record reveals that petitioner has filed a suit for the grant of decree for visitation rights in respect of Respondent No. 2/minor, being his real daughter before the learned Judge, Family Court, Peshawar in terms of Section 5 of the Family Courts Act read with Entry 5 of the Part-I of the Schedule. Interestingly, when an application was filed for the dismissal of suit of the petitioner on the ground of maintainability, the learned Judge, Family Court vide order dated 19.05.2021 dismissed the same and held the suit as maintainable under the Family Courts Act, 1964, however, again, on interviewing the minor namely Malalai aged about 14 years in the chamber, dismissed the suit of the petitioner holding that allowing visitation to the petitioner is not in the welfare of the minor. Appeal filed there against was also dismissed by the learned Additional District Judge-III, Peshawar vide judgment dated 06.10.2021.
5. This Court considered the orders of the learned Courts below as unprecedented and infact against the interest of minor.
6. The Hon'ble Sindh High Court, in the case of Mst. Abeera Khan, held that "real parents have an inherent right to meet and visit their children".[1]
7. The apex Court, in the case,[2] has given a comprehensive plan, though with the consent of parties, with regard to custody, visitation rights, maintenance of minors and obligations of both parents.
8. The Single Judge of the Hon'ble Sindh High Court, in Mst. Muneeba Raheel's case, while commenting upon the rights of a father to visit his minor children, held that "real father could not be deprived of his right to meet his daughter and/or spend time with her--Such restraint would lead to/cause emotional deprivation of the minor daughter on both sides--Child not only needs love, affection, care and attention of a mother but also that of a father'.[3]
9. The Hon'ble Lahore High Court (Multan Bench), in Mst. Ayesha Abdul Maleek's case, has held that "intelligence preferences of a minor can be looked into in cases of custody of minor. Though. the minor has shown her aversion towards the petitioner but the petitioner cannot be denied to have company of her minor daughter. because the same cannot be denied to a mother/father vice versa'.[4]
10. The Hon'ble Sindh High Court (Hyderabad Bench), in the case of Mst. Hira, held that "Muhammad Arif is real father of minors namely Dua and Muhammad Ashir and his visitation rights involving the rights of minors/awards towards their father. whose fatherly supervision, channelizing their activities. which would be beneficial for the welfare of the minors/wards, cannot be denied'.[5]
11. The Hon'ble Lahore High Court, in the case of Shaukat Khalid, held that "it may be mentioned that although preference of the minor may. in such cases, be taken into consideration but it is not always relevant because the minor is not the best Judge as to where his (or her) welfare lies. We have noticed generally that a child is apt to prefer to continue living with the parents or relative with whom he/she has been allowed to live for sometime as such person is in a position, be it the father or the mother, to brainwash the child against the other claimant to the child's custody".
The learned Court in case of Shaukat Khalid supra further held that the preference expert doubt, relevant, but not final or binding on the Courts. It has to be judged with reference to the welfare of the minor. The minor being under the direct influence of the petitioner and apparently tutored rather brainwashed by her, has levelled wild allegations against her own parents and even stated that she would die rather than go to her parents. Immature as she is she cannot visualise the hazards of life and exercise sound discretion qua her welfare. It is the duty of the Court while exercising its parental jurisdiction, to judge the welfare of the minor in the context of the facts and circumstances of each case".[6]
12. Same view was further expressed by the Hon'ble Islamabad High Court in the case titled "Mst. Isbah Rashif vs. Additional District Judge, Islamabad-West and others (2021 CLC 1089)".[7]
13. The Hon'ble Lahore High Court (Rawalpindi Bench), in the case of Mst. Shahida Adnan, held that "as regard chalking of meeting schedule of minor with the Respondent No. 3 is concerned, the learned Guardian Judge has rightly passed the judgment because the father could not be denied right of access to his minor daughter nor would he be considered an alien enemy to her. The minor/daughter would not only need love, affection, care and attention of her mother but also the company and guiding hand of father. Therefore, negating father of his right to meet his daughter would lead to emotional deprivation. Hence, the learned Courts below have rightly chalked out reasonable visitation/meeting schedule of the minor with the father in light of the dictum laid down by the Hon’ble Supreme Court of Pakistan in the judgment cited as "Mst. Madiha Younus v. Imran Ahmed" (2018 SCMR 1991).[8]
14. This Court also subscribes to the above and is also of the view that it is the inherent right of the parents to have visitation rights with his/her children and depriving any of the spouce of such visitation right, will certainly have an effect on the personality of the
child/minor. Admittedly, the minor shall carry the parentage with her throughout her life and such relation shall remain throughout as neither Islam nor the land laws allow such renunciation.
15. This Court is not appreciating the order of the learned Judge, Family Court, whereby, even the gift, given by the petitioner, was returned. Both the orders of the learned Courts below are against the law and cannot be sustained. Accordingly, they are struck down and the case is remanded to the learned Judge, Family Court, Peshawar to first pass an interim order allowing the visitation rights to the petitioner and thereafter in accordance with the judgment of the Hon'ble Supreme Court of Pakistan in the case of Mst. Madeeha Younus (supra) to chalk out a comprehensive plan pertaining to the visitation rights and other obligations of both parents.
16. This writ petition is allowed in the above terms.
(Y.A.) Petition allowed
[1]. Mst. Abeera Khan vs. Adnan Jamel and another (2019 CLC 1478).
[2]. Mst. Madeeha Younus vs. Imran Ahmed (2018 SCMR 1991).
[3]. Mst. Muneeba Raheel vs. Raheel Taufiq Feroz and another (2020 CLC 1353).
[4]. Mst. Ayesha Abdul Maleek vs. Additional District Judge, Sahiwal and 2 others (2020 YLR401).
[5]. Mst. Hira vs. 7th Additional Sessions Judge, Hyderabad and another (2019 MLD 804).
[6]. Mrs. Shaukat Khalid vs. Additional District Judge, Rawalpindi (1989 CLC 1377).
[7]. Jehangir Siraj Dogar vs. District Judge and another (2021 YLR 1299).
[8]. Shahida Adnan vs. Additional District Judge and others (2021 YLR 1915).
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