MAULVI ANWARUL HAQ, J. --- On 27.7.2003 the petitioner filed an application against the respondent No. 1 and some of his family members. It was stated that she was married to the respondent on 26.10.1988 and bore him. Two sons and two daughters. One daughter has died. The respondent left for England about six years ago and came to Pakistan only once, three years ago. He adopted an indifferent attitude towards the petitioner and the children ; and the in-laws also started treating her with habitual cruelty. On his visit to Pakistan about three years ago, he turned the petitioner and the children out of his house. He again left for England without even meeting the petitioner.
However, she went back to the house of the in-laws. She then complained that the respondent No. 1 already contracted two marriages earlier and divorced the wives and is also divorcing her 15 years after the marriage. According to her, he had contracted a marriage in England. On 7.7.2003 on his instructions his family members turned the petitioner out of the house. The next day she went to get back her children. They were not handed over. According to her, it is in the welfare of the children that their custody be given to her. The respondent No. 1, in his written statement took the plea that the petitioner-lady does not behave properly and he has divorced her. He denied having contracted any marriage in England. According to him, the petitioner being dependent upon her brothers cannot take care of the minors. He, however, admitted that during the past six years, he came to Pakistan only once. Following issues were framed by the learned Guardian Judge:---
(1) Whether the petitioner is entitled to the custody of the minors? OPP.
(2) Whether the petitioner can better manage the education and well-being of the minors? OPP.
(3) Whether the petitioner herself left the minors at the house of respondent, therefore, she is not entitled to the custody of the minors? OPR.
(4) Whether the respondent is in a better position to educate and look after the minors? OPR.
(5) Whether the petitioner has no cause of action to file the instant petition? OPR.
(6) Relief.
Evidence of the parties was recorded. The application was allowed by the learned Guardian Judge on 22.2.2005, who directed the delivery of custody of the three children to the petitioner. He also made some arrangements for visitation of the children with their father. The respondent No. 1 filed a first appeal which has been allowed by a learned A.D.J., Rawalpindi, on 14.7.2005, who has dismissed the custody petition of the petitioner.
2. Learned counsel for the petitioner contends that the learned A.D.J. Has acted without lawful authority by setting aside the judgment of the learned Guardian Judge who had given a judgment in favour of the petitioner after examining the entire evidence on record. Further contention is that although the marriage at England could not be proved, the respondent No. 1, in fact, has contracted another marriage and also has issues from the same. Learned counsel for the respondent No. 1, on the other hand, while conceding that the respondent No. 1 has contracted another marriage on 14.9.2006 and has issues out of the said wedlock, insists that the learned A.D.J.
Has correctly approached the matter in deciding the case in accordance with the wishes of the minors.
3. I have gone through the copies of the records. I have already stated above the material contents of the pleadings of the parties. I may note some relevant dates in chronological order. The parties were married on 26.10.1988 and were blessed with the said children. According to the petitioner, she was turned out of his house by the respondent's family on 7.7.2003 while retaining the children. She was divorced vide document dated 6.7.2003. From the contents of this document, it appears that divorce was pronounced in England, U.K. She filed the petition on 27.7.2003. She appeared in the witness-box as PW-1 while her father was appeared as PW-2. In rebuttal the respondent No. 1 appeared as RW-1.
This is the entire evidence in the case. The learned Guardian Judge examined the said evidence and came to the conclusion that it would be in the welfare of the minors to deliver their custody to the petitioner. The learned A.D.J. Has based his entire judgment on the ground that admittedly the minors had been with the respondent No. 1 since the last six years (the judgment is dated 14.7.2005) and further that all of them have stated that they do not want to go with the petitioner. It is true that Section 17(3) of the Guardian and Wards Act, 1890, authorizes a Court to consider an intelligent preference of a minor in the matter of custody. However, the learned A.D.J. Simply forgot that he recorded the statements of the minors on 14.7.2005 i.e. The date of judgment when the parties were already in Court since July, 2003 and the minors, of course, had come alongwith the respondent No. 1.
4. Be that as it may, I am inclined to go alongwith the learned A.D.J.. In the matter of the eldest child, namely, Muhammad Javed, who is of age and has, in fact, grown a beard as well. However, the daughter and the younger son cannot be said to make an intelligent preference in this matter. The admitted facts of the case are that the petitioner has not re-married after the divorce and is constantly fighting for the custody of her children while the respondent No. 1, , on the other hand, has admittedly contracted marriage with one Mst. Zaib-un-Nisa and his counsel has admitted that he has three children from the said lady. The daughter and the younger son are of tender age and require care which only a mother can provide. I may further note here that on 27.8.2008, Hajra Bibi and Haider Ali minors were handed over to the petitioner and she has brought them today. Upon my questioning, they only say that they were a bit bored while staying with their mother. However, the hostility being expressed on 27.8.2008, when I had examined them is not there.
5. This writ is allowed partly.
The impugned judgment dated 14.7.2005 of the learned A.D.J., Rawalpindi is declared to be without lawful authority and is set aside to the extent of Mst. Hajra Bibi and Haider Ali minors who will remain with their mother. I have examined the visitation schedule and find that the learned Guardian Judge has not made any provision for the long summer and winter Vacations of the School going children. I, therefore, amend the said Schedule in the following terms:---
(I) Both the children shall continue to study in the School where they are already studying and as directed by the learned Guardian Judge, the respondent No. 1 shall bear the expenses and further is authorized to monitor education progress of the children.
(ii) On every alternate Saturday commencing 6th of September 20, 2008, the minors shall be handed over to the respondent No. 1 at 5.00 p.m. And will spend the weekend with their father to be returned back to their mother at 5.00 p.m. On the following Sunday.
(i.e) During Summer Vacations the minors shall spend the first 15 days with their father and similarly the first seven days of Winter Vacations each year they will spend with their father and to be delivered to the respondent No. 1 at 10.00 a.m. On the first day of Vacations and to be returned to the petitioner by the respondent No. 1 at 5 p.m. On the 15th day of Summer Vacations. Similar Schedule will be followed on the first and the 7th day of the Winter Vacations.
(iv) The minors shall celebrate Eid-ul-Fitr with the respondent No. 1 and Eid-ul-Azha with the petitioner. On the occasion of the Eidl-ul-Fitr, the minors will be delivered by the petitioner to the respondent No. 1 at 8.00 p.m. On the day preceding Eid and they will be delivered back to the petitioner at 4.00 p.m. On the day of Eid.
(v) Any non-compliance of the said Schedule to be reported to the learned Senior Civil Judge/ Judge Guardian Court, Rawalpindi.
No orders as to costs.