' MIAN SAQIB NISAR, J.---The petitioner and respondent No,1 were married and they were blessed with the minor, Muneeb-ud-Din Mirza, who was born on 26-10-2000; the petitioner procured a decree of Khula' against respondent No,1 on 13-5-2005, who on 13-1-2005 filed an application under section 25 of the Guardians and Wards Act, 1890 for the custody of the minor, which was rejected, but the learned Judge prescribed a visitation schedule, such as that the respondent No,1 shall be entitled to pick up the minor on the second and last Friday of each month from the school and shall drop him there on Monday thereafter, besides for the first full ten days of the summer vacations and the day next to both the Eids from 9-00 a.m. To 6-00 p.m., he shall have the custody.
Both the parties aggrieved, the petitioner about the visitation and respondent No,1 regarding the rejection of his custody application, filed appeals, which were dismissed vide order dated 25-10- 2005, however, in paragraph No,2, an observation was made by the learned appellate Court that the petitioner may, in the changed circumstances, ask for modification of the visitation schedule.
The orders of the Courts below were challenged by the petitioner (not by the respondent No,1) through Writ Petition No,17948 of 2005, which was withdrawn on 17-1-2006, whereas during the pendency thereof, an application to the learned Guardian Judge for the change of the visitation schedule was moved by the petitioner on 24-11-2005, which was dismissed on 25-11-2005, however, the appeal of the petitioner against the said order was accepted on 15-5-2006 and on account of this, the order of visitation was modified and the monthly visitation was restricted to every Saturday from 9-00 a.m. To 6-00 p.m., but the 10 days' custody for the summer vacations and both the Eids was kept intact. The petitioner challenged the above order in W.P.. No,6427 of 2006, which again was withdrawn on 20-6-2006.
' It may be pertinent to mention here that respondent No,1 had also challenged the order dated 15- 5-2006 through Writ Petition No,6751 of 2006, which was allowed by my learned brother Syed Hamid Ali Shah, J through the judgment dated 3-10-2007, in which, it was directed that the appeal filed by the petitioner, which had been decided vide order dated 15-5-2006, shall be deemed pending and be decided afresh; instead of pressing the appeal and seeking decision thereupon, it was withdrawn by the petitioner on 25-3-2008, while before its withdrawal she on 22-11-2007 filed a miscellaneous application before the Guardian Judge for modification of, the monthly visitation in which, no grouse was made against the summer vacations/Eids. The learned Guardian Judge through the order dated 3-4-2008 accepted the application and the visitation was changed to fortnightly Saturday's from 9-00 a.m. To 6-00 p.m.
' Be that as it may, the petitioner again on 31-5-2008 moved an application that the visitation of the minor during the summer vacations should also be modified; this application was dismissed; both the parties had challenged .The orders through separate appeals; the appeal of the petitioner No,165 of 2008 has been dismissed, while respondent No, l's Appeal No,138 of 2008 has been accepted. Hence this petition.
2. When this petition came up for hearing, the operation of the impugned order was suspended for a specific period, which was not extended and during the pendency of the matter, on account of certain orders passed by this Court, the visitation of the minor with respondent No,1 was enabled, however, the petitioner of her own did not give the custody to the father for first ten days of the summer vacations for the year 2008 and it is only upon direction of this Court through the order dated 27-8-2008 that the minor could be handed over to respondent No,1 for only 3/4 days as the summer vacations by the time had elapsed; for this year too, the petitioner despite no stay order, herself never provided the custody of the minor and it is upon a miscellaneous application before this Court for that purpose filed by respondent No,1, that despite her service (which she denies) through the process server, the production of the minor has been procured through the police.
3. The learned counsel for the petitioner has argued that since the time the first order fixing the visitation schedule was passed by the learned Guardian Judge, certain development has taken place on account of which, it requires to be modified; such events are that respondent No,1 has remarried and from the wedlock has two children; the minor complains that whenever he goes with the father, the stepmother does not care for him; the attitude of the stepmother is indifferent and she at time does not even speak or respond to the minor; the studies of the minor, who is reading in Class-5, are effected in the house of the father, where the situation is not congenial for the study because there is only one bedroom and no separate place is provided for the minor for the above purpose, the two kids disrupt him in this behalf, the minor is also taking more than one tuitions and if he is sent to the father for 10 days, it shall adversely affect his education. On the proposition about the criteria for the visitation, the learned counsel for the petitioner has referred to the judgments reports as Zahoor Ahmad v. Mst. Rukhsana Kausar and 4 others 2000 SCM R 707, Altaf Akhtar Alvi v. Mst Sadaf Ara and others 2008 SCM R 527, Mst. Zahida Kiani and another v. Capt.
(Retd.) Shahid Ali Khan 1993 SCM R 2303 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCM R 299. However, when questioned he has conceded that as per the ratio of the above dictums, even for the purpose of visitation, the paramount consideration is about the welfare of the minor; the petitioner as stated by her counsel (in very clear and open terms) has no objection if the father is allowed to meet the son and keep him for the daytime, but the real and serious reservation is that leaving the child with the father even for a night, as in the presence of stepmother: that according to Mr. Riyasat, shall be against his (minor) welfare and it shall, as mentioned earlier, not only affect his personality, but also his education.
4. It may be pertinent to mention here that on 28-8-2009, the minor was directed to be handed over to respondent No,1 for three consecutive days (excluding the nights) and on account of such visitation, the learned counsel for the petitioner has brought on record an affidavit of the petitioner to highlight that during these days, the child has not been properly looked after. The affidavit has been retained on the record.
5. On the other hand, the learned counsel for respondent No,1 has argued that respondent No,1 is living in a house of two Kanals, half portion of which belongs to his father, who also resides with him as it is a joint family system and the other is owned by him; there is ample place to accommodate the minor for his abode and studies. It is also argued that on previous occasions, whenever under the directions of the Court, the minor was given to the father's custody, he was taken out and the gifts were also given to him; that the minor is nine years of age, the father (respondent No,1) is MBA and the stepmother is also M.A. In Fine Arts and has been a teacher, it is improbable that such educated person would Show any slackness regarding minor's studies; it is thus submitted that it is quite important that the minor should have maximum contact with father as also with his other brother and sister (step).
' The learned counsel has distinguished the judgments cited by the learned counsel for the petitioner on the ground that those are either based upon the compromise between the parties and in one of the cases, the father was not living in the country but abroad; in 1993 SCM R 2303, the father was given the custody and the mother visiting right with the direction that the minor shall stay with the mother from every Thursday evening till Friday evening, despite the fact that mother had contracted second marriage.
6. Heard. From the backdrop of the case given above and from the examination of the record, it is quite clear that the petitioner in no way is prepared and inclined to give the short custody of the minor to the father, who is his natural and legal guardian (of the minor) enabling the stay for even a single night. If she has 'not disobeyed, as argued by her learned counsel, she even has not followed, regarded and obeyed the orders of the Court when there was no stay order in her favour, by herself giving the custody of the minor to the father, during the last, and also the long summer vacations of this year. Each time, the father after hectic efforts could get the custody,' for only 3/4 days and this time because the summer vacations had already elapsed, it is not even for a single night he could get the custody, for the reason that when the case was partly heard on the last date of hearing, considerable resistance was shown by the petitioner that the child should not be permitted to stay with the father for the night.
7. Be that as it may, it may be held that the cases pertaining to custody/visitation issues of the minors are not ordinary cases like the breach and enforcement of other civil right/obligation, such as the property disputes etc. These cases have their own dimensions, repercussions and consequences, founded upon the human emotions and the sentiments. The resolution and adjudication of this special kind of matters, therefore, should be conceived considered and settled in a different perspective and context, which obviously revolves around the welfare of the minor, but at the same time the natural feelings of the parents cannot be overlooked and ignored; if the parents means something great for a child, the child may also mean the whole world the parents.
In such cases therefore, (where the lis is between the parents), there are three main characters of the scenario, a mother, a father and a child and in certain cases the brothers and sisters of the minor, they are all the stakeholders and the emotions and feelings of every one of them should be kept into view while deciding the noted issue, besides the personal law of the minor and the rule about his welfare as mentioned earlier which should be of pivotal consideration. All these putting together contemplates that regarding the visitation schedule neither the mother should be altogether deprived of the complete custody if she has the lawful custody of the minor (until her right of custody terminates on account of some Courts' order or otherwise) nor the father should be deterred and prevented and yearn to meet and see his own child with whom in the normal situation, he shall have a free access and interaction, and could shower his love and affection, if the relation between the parents was normal; this also is true position vice versa. The third important character is the child himself, who under the law of nature should have the privilege of the love and affection of both the parents, which, is one of the greatest blessings of the God Almighty, but if for certain reasons, the parents on account of their discord and disparity have fallen apart, the child should not be deprived to have the maximum of the possible. He/she could achieve the above from either of the parents. And it does not behove of the adversary parties, who may even have hatred towards each other to claim- exclusive possessory right over the child in exclusion of the other, as one could demand in the matter of the property dispute etc. Besides, it may be clearly understood that the father is the natural and legal guardian and under the Islamic Personal Law, the right of mother to "Hizanat", in case of a male child, terminates around the age of seven years, (My this observation, in no manner, shall be construed of causing any prejudice to either party in the issue of minor's custody), which has nexus and must be kept into view while considering the question of visitation. The father, once the child has passed the age of seven years, must have maximum interaction with the minor even if the custody is with the mother, but this again should be subject to the rule of welfare of the minor; if for any reason it shall be against the noted principle, the court should either restrict the visitation or even can decline. But if it is otherwise, to prevent the minor from meeting with his father may cause an estrangement, prejudices, psychological intricacies and cobwebs in the mind of the child, which may ultimately prove to be a pivotal vice and a shortcoming in the growth of his personality on the count that, he at the relevant time could not get sufficient love, affection and company of his father, which a normal child would enjoy. It may be stated with concern that it seems quite unnatural rather harsh and coercive to hold that though the father is the legal and natural guardian of the minor and has the right of his supervision under the Islamic law as well, yet has to wait for a week, a fortnight or a month or even more than that in certain cases, to meet his son for the reason that the custody under the Court's order or otherwise is with the mother or the matter is sub judice. This all as mentioned is true for the mothers as well, who are the de fecto guardians of their children, keeping the child in their womb for 9 months and undergoing the labour pains, the rigour of feeding, nurture and raising them; a child is a part of their flesh and it is for this reason, why in Islam the Paradise is said to be underneath the mother's feet. One is really shocked, dismayed, disappointed and disgusted to see that in the Family/Guardian Courts the parents waiting to meet their own children, which opportunity they might be having after weeks or month and may only last for not more than an hour or so. The food cloth, sweets and toys brought by them are sometime not accepted or are thrown away by the child, because he may have the instruction not to take those by the one from whose custody he is brought, coupled with the staring of the adversary party may also spoil the pleasure of such a short meeting. In my candid view thus, the court should be liberal in chalking out the visitation schedule of the minor with the parents, obviously keeping in view his/her welfare. And in the instant chaswe, only tWo factors have been indicated against the above principle. Firstly that there is a stepmother in the house and secondly there is no enough accommodation enabling the child to study and/or on account of his night custody with the father or full 10 days visitation, his tuitions/ study shall suffer.
8. As regards the first argument is concerned, suffice it to say that the stepmother is not always a lady Macbeth or witch and it cannot be presumed in law that she always shall have dislike, hatred towards, and shall be disaffection ate to the minor, until and unless there is a strong proof in this regard. I am afraid that it is only an unfounded apprehension of the petitioner without there being any evidence to that effect. In the affidavit now filed, an attempt has been made that the stepmother's attitude was not up to the mark, but I have examined the minor in my chamber, and find the element of tutoring and exaggeration in this behalf. As far as his study etc. Is concerned, I am not convinced that even if there being a small accommodation, the minor's study shall be affected only for the reasons that he has to spend aboutten days of his summer vacations with the father. The summer vacations are meant partly for the leisure of the students and if such leisure time is spent by the minor with the father, it shall be best utilization of the vacations, rather the studies. On account of the above, I am not impressed if any reasons as propounded by the petitioner's counsel militates against the welfare of the minor: I have been told that the mother is a businesswo man and a director of some chemical company. I have spoken to her and though she posed to be soft and reasonable, yet I gauged that she is restive and obstinate and come what may does not want under any circumstances, that the child should be permitted to stay with the father for a single night and enjoy the company of his other brother and sister, and it is only with this object that the lis has sprawled in the shape of successive applications/appeals and writ petitions filed by her. Thus, I am of the view that it shall be against the welfare of the minor, if he is kept away from the father, because besides the love and affection from which he shall be deprived, he may develop an estrangement, which would not be in any way in his best interest.
Resultantly, I do not find any illegality, perversity, arbitrariness or capriciousness in the impugned order calling for interference in the constitutional jurisdiction. The writ petition thus, has no merits and is hereby dismissed.