Family Cases

2018 SCMR 1991

----S. 25---Custody of minors---Compromise/agreement between parents---Custody with mother---Visitation rights of father---Maintenance of minors---Comprehensive plan for custody, visitation rights and maintenance of minors, and obligations of both parents issued by the Supreme Court listed. Supreme Court issued a very comprehensive plan with regard to custody,visitation rights and maintenance of minors, and obligations of both parents.

Keywords; Responsibilities of parents, visitation schedule, maintenance

2018 SCMR 590

----Ss. 7 &25---Custody and guardianship of minor children after death of theirmother---Father as the natural guardian of minors in comparison to maternalgrandmother---Petitioner/father was the natural guardian of the children aftertheir mother's death---On account of their respective ages, the right ofHizanat of the minors (in the present case) no longer vested in their maternalgrandmother---Father of the children was ready and willing to look after themand had the financial resources to fulfil their material needs and educationalrequirements---Father had neither returned to his job abroad nor remarriedkeeping in view the welfare and best interest of his children---Children couldnot be deprived of the company, love and affection of their realfather---Paternal grandmother of the children was also available in thefather's house to help him look after and raise the children---Father did notsuffer from any legal disability that may deprive him from his legal right tohave custody of his children---Prima facie, the best interest and welfare ofthe minors laid in handing over their custody to their real father---SupremeCourt directed that the custody of the minors shall be handed over to theirfather within one week, and that the father shall ensure that the minors spent week-endswith their maternal grandmother for a specified time period.

Keywords; Welfare of minor, father is a natural guardian, visitation schedule, death of mother, father's preferential right of custody,

2019 CLC 1787

S.25---Custody of minor---Welfare of minor---Re-marriage of mother---Visitation---Conduct of father---Non-payment of maintenance allowance---Effect---Petitioner/mother assailed the order of Appellate Court whereby permanent custody of min or was given to the father/respondent---Appellate Court had granted the permanent custody of minor to the father on the sole ground that the mother had remarried and was now living with her second husband---Validity---Held; such ground could have been applied had the subject min or been a girl---No other justifiable reason was assigned by the Appellate Court for granting permanent custody of a male min or of tender age to his father---Observation of Family Court regarding the conduct of father being negligent and mala fide, was apparent in view of his continuous absence at the time of visitation ordered by the Family Court, impounding and blocking of his CNIC by Family Court and issuance of his non-bailable warrants by the Judicial Magistrate---Father had not complied with the decree of maintenance passed by Family Court in favour of the subject min or---Grant of permanent custody of min or to respondent/father was not in the interest and welfare of the minor---Respondent was, however, granted right of visitation, subject to certain conditions---Constitutional petition was allowed, in circumstances.

Keywords; Welfare of minor

2014 CLC 1168

Sec. 25, Article 199 of the Constitution. Maintainability-- application for custody of minor-- conditional order for visitation of minor subject to submission of surety bond--- Validity--- Mother filed petition for custody of minors which was accepted with the consent of parties subject to affording the father opportunity to meet his minor children-- neither mother showed any apprehension of removal of minors form the territorial jurisdiction of court nor her counsel requested for any condition at the time of passing of impugned order as imposed by the Guardian court. proceeding before the Guardian court were conducted in congenial and harmonious manner… despite between the parties was decided with the concurrence of the parties and trail court was not justified in passing an order which was beyond the prayer of parties. father was not likely to remove the minors form the territorial jurisdiction of family court. Right of father to see his children could not curtailed by imposing condition of submission of sureties every time he had to meet his own children. Impugned order with regard to imposition of such condition was illegal and arbitrary exercise of power. Technicalities could not prevent high court to strike down such order in exercise of constitutional jurisdiction when act of court or tribunal would infringe the fundamental rights of citizen.. impugned order was set aside to the extent of imposition of condition with regard to submission of two surety bonds in the sum of Rs.10,00,000/= each with local sureties and same was modified to the extent that father would be entitled to meet his children twice in a month when he would be in Pakistan subject to advance intimation of 72 hours to the mother… Father was told that if he would misuse such concession granted by the High court of attempted to remove the minors from the territorial jurisdiction of Guardian court then he would be liable to face contempt of court proceedings and would also loose the right of visitation of his children. Constitutional petition was accepted in circumstances.

Keywords; Maintainability, surety bonds for visitation, illegality of surety bonds

PLJ 2020 Quetta (Note) 76

Constitution of Pakistan, 1973
------Art. 199--Constitutional petition--Filling of application by petitioner for visitation custody of minor--Allowed--Filling of application to exempt minor from one week meeting--Allowed--Appeal--Allowed--Depositing of maintenance--Inherent right--Ordinary entitlement of custody--Purpose of meeting--Challenge to--Petitioner (father) under Mohammadan Law is lawful guardian of his minor child and is ordinary entitled to his custody provided it is for welfare of minor--Petitioner is regularly depositing maintenance of minor as fixed by trial Court--Minor Amber is in her tender age requires love and care of her parents (respondent and petitioner) deprivation of any of them would have negative effect not only on her mental growth, but also affect her intellectual development--In view of fact neither minor nor petitioner could be deprived of company of each other--It is an inherent right of contesting parent to seek visitation to minor, especially a father, who is natural guardian, he not only is required to participate in upbringing of minor(s), but should develop love, bondage and affinity with them, to achieve this purpose, concerned Court should facilitate a congenial, homely and friendly environment and reasonable visitation schedule--Meeting in Court premises does not serve purpose of meeting--It, therefore, is not in interest or welfare of minor to hold-meeting in Court premises, therefore, meetings of minor with petitioner should preferably be held at residence of petitioner at Quetta, if he has or arranges--Petitions was allowed.

PLJ 2021 Islamabad 110

Guardian and Wards Act, 1890 (VIII of 1890)--
----Ss. 7 & 17--Constitution of Pakistan, 1973, Art. 199--Application for appointment as guardian--Dismissed--Appeal Dismissed--Visitation rights--Distinction between custody and guardianship--Right to supervising upbringing of minor son--Right to removal of minor--Interference in concurrent findings--A father is considered natural guardian of a minor, since even after separation with mother, and even when mother has been granted custody of a minor child, father is obligated to provide financial assistance to minors--A mother has no right to remove a minor to a place which is inaccessible to father of minor--It is not for welfare of minor son to appoint guardian of his person in presence of his natural guardian who is not unfit for his guardianship--Petitioner has failed to identify any illegality that calls for interference by this Court--High Court in constitutional jurisdiction does not ordinarily interfere with concurrent findings of fact given by trial Court and appellate Court--High Court can intervene in custody matters, but only on an interim basis in face of an exigency, pending adjudication of matter by guardian Court--Petition dismissed.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 41(1)(e)--Power of a guardian--Powers of a guardian cease “in case of a ward whose father was unfit to be guardian of person of ward, by father ceasing to be so, or if father was deemed by Court to be so unfit, by his ceasing to be so in opinion of Court.
Guardian and Wards Act, 1890 (VIII of 1890)--
----Ss. 7, 17, 19 & 41--Appointment of Guardian--No one can be appointed guardian in father’s place unless father is found unfit to serve as guardian of his child, and onus to establish that father is unfit is on person bringing such claim.
Guardian and Wards Act, 1890 (VIII of 1890)--
----Ss. 7 & 17--Obligation as guardian--Right of a father--Right of a father to access to child and to provide constructive oversight has been recognized by Courts.
Guardian and Wards Act, 1890 (VIII of 1890)--
----Ss. 7, 17 & 19(2)--Entitlement for appointment as guardian--Appellant/petitioner No. 1 being mother is not entitled for her appointment as guardian of person of her minor son despite she is having custody of her minor son, hence trial Court rightly refused to appoint her as guardian of person of minor.