' SHAHID ANWAR BAJWA, J---Criminal Miscellaneous Application No,112 of 2009 has been filed by applicant Mst. Humaira Abasi against her former husband Mehmood Hussain Haji and Criminal Miscellaneous Application NO,160 of 2009 has been filed by respondent Mehmood Hussain. They are respectively, for the sake of brevity in this order, referred to as the mother and the father.
2. Mother in her Criminal Miscellaneous Application stated that marriage was contracted between the parties on January 1, 1991. From that wedlock two children one in June, 1993 and other in April, 1998 were born elder Anarze (now 16) and Hamza (now 11). Tension developed between the parties and ultimately around May, 2008 after issuance of Talagnama to the mother Guardian and Wards Application No,1066 of 2008 was filed "before XXth Civil Judge Karachi East which was compromised between the parties and the compromise was duly recorded by the Court below on July 29, 2008. It has been alleged by the mother in her application that compromise has not been followed by the father. Mother alleged that on April 28, 2008 she purchased a phone for her son so that she could him access to her and vice versa. However, said phone was taken away by father.
On account of which, it was stated by mother, in violation of agreement, she has been denied access to her son. Thereafter on March 25, 2009 mother along with her sister went to pick up her younger son from his school as she had been informed that child was not taking lunch with his father mother told drier of father that she was taking Hamza to her sister's house for lunch and he should follow her there and thereafter child would be ready for his tuitions. She stated when she was travelling with her son, on Khayaban-e-Ittehad a Toyota Corrolla car of father approached her Suzuki Cultus and the same driver and guard got out with guns and started banging on car window of mother's car. Her driver managed to escape from there and consequently and F.I.R. Was lodged against petitioner and his guard on the same date. Mother was contacted by father who indirectly clarified through elder son that he was ready to keep of younger son with her. She immediately wrote to father through her advocate that she accepted the offer of father and that she was going to take action in this respect to get such an order. Consequently she approached the Court below and sought custody of younger child with condition that whenever minor so requested he would be free to visit any member of his family without interruption from her.
3. Consequently the mother filed Guardian and Wards Application No, 774 of 2009 in which application she prayed the Hon'ble Court to direct that the mother shall have sole custody of minor Hamza.
4. In the meanwhile the father also filed two applications in the Guardian and Wards case No,1066 of 2008. Incidentally this is the case in which compromise was filed and it was disposed of in terms of the compromise vide order, dated 29-7-2008. In the first application it was prayed that the mother be directed to handover custody of minor Hamza to the father. It was prayed to the Court to appoint Head Bailiff with police aid with direction to recover the minor who was stated to be in illegal custody of the mother.
5. Counter Affidavit to this application has been filed by the mother. Second application filed by the father was under section 16 of the Family Courts Act, for initiation of contempt proceedings against the mother. It was stated in the application that order, dated 29-7-2008 had directed that both the children will reside with the father and the mother shall have visitation rights. It was stated that on 25-3-2009 the mother had picked up minor and had refused to return him despite demands of the father. Counter Affidavit to this application was filed by the mother.
6. On 27-4-2008 application for Contempt of Court was dismissed by the Family Court. Relevant part of the order, dated 27-4-2008 reads as under:-- "I have heard both the sides and also gone through record of the case.
' The provisions of section 16 of West Pakistan Family Courts, Act, 1964 provide as under:--
(a) Offers any insult to the Family Court; or
(b) Causes an interruption in the work of the Family Court;
(bb) Misbehave with any person in the Court premises uses abusive language, threats or uses physical force or intimidates any form;
(c) Refuses to answer any question put by the Family Court, which he is bound to answer;
(d) Refuses to take other to state the truth or to sign any statement made by him in the Family Court; and the Family Court may forthwith try such person for such contempt and sentence him to a fine not exceeding rupees two thousand.
' Apparently, present situation does not fall under section 16 of the Act, 1964 nor, it can redress the grievance. The application under section 16 is dismissed accordingly with no order as to cost.
' However, another application under section 25 of the Guardians and Wards Act, 1890 will be proceeded as per law, which shall also decide the question regarding compromise Deed to which both the parties are signatories.
' Furthermore at this stage both the parties are directed to appear along with the minor so that temporary arrangement regarding the minor between the parties be made."-
7. As far as, the other application under section 25 of the Guardians and Wards Act, 1890 is concerned, the Court vide its order, dated 2-6-2008 observed that mother should adhere to the compromise clause by handing over Hamza to the father. The Court further observed that the mother has filed a petition under section 25 Guardians and Wards Act, for custody of the minor which shall be proceeded with and decided in accordance with the law. Meanwhile on 6-5-2009 an application under section 12 of Guardians and Wards Act, 1890 for temporary custody of minor Hamza was filed. Vide order; dated .22-5-2009 father was directed to handover interim custody of the minor to the mother every Friday till Saturday of each month till further orders, Both the parties were directed not to remove the ward from jurisdiction of the Court. This order was passed by the Court below on 22-5-2009. On 15-5-2009 a letter was written by Advocate for the father in which advocate stated that mother was permitted to meet the children on daily basis. It was further stated that when on 2-7-2008 Hamza went to his mother's place he was not allowed to go back to the father's house till 5-7-2008. It was further stated that children were scheduled to depart for holidays child was sent back reluctantly on 5-7-2008. Thereafter agreement, dated 29-7-2008 was referred to and thereafter incident of 25-3-2009 was referred to and it was stated that thereafter for 30 days mother was not provided any chance either to speak to minor or to meet with him. It was in this state of affairs that this Criminal Miscellaneous Application was filed by the mother with prayer that this Court may be most graciously pleased to punish the contemnor for committing civil and criminal contempt punishable under section 5 of the Contempt of Court Ordinance, 2003 for violating the order, dated 2-5-2009 and 22-5-2009 passed by XXth Civil Judge and Judicial Magistrate, Karachi East. These are facts and pleadings in Criminal Miscellaneous Application 112 of 2009 filed by the mother. On the other hand father filed Criminal Miscellaneous Application No, 160 of 2009. After narrating the incidents leading up to filing of the compromise application and order thereon on 29-7-2009 it was stated in the application that custody was being regulated thereafter in terms of the order of the Court and the father in every way cooperated with the mother so much so that when the mother remarried on 10-10-2008 according to her wishes both the children were sent to Islamabad to participate in second marriage of the mother. It was stated that on 25-3- 2009 the mother went to the school and took the child with her. On the way out of the school driver and guard of the father who were on duty requested her to leave the child: It was further stated that respondent used abusive language and walked with the minor Hamza towards back door of the school. It was further stated that driver of father followed car of the mother to stop them so as to take the child have as per their routine. Mother told the driver to come back later to get the child.
It was further stated that F.I.R. Was false and baseless.
' In view of this situation on 2-4-2009 an application was filed under section 16 of the Guardians and Wards Act, for initiating contempt proceedings against the mother. It was further submitted that this application was disposed of by the Court below vide order, dated 2-5-2009 where after the minor was returned to custody of the father, after the mother had allegedly kept the child in illegal custody for 38 days. Consequently it was prayed that the mother be punished for committing criminal contempt punishable under various laws.
8. Since the relationship between the parties in respect of the minors is governed by the agreement; dated 29-7-20U8 it would be fruitful to refer to that agreement before referring to contentions of the learned counsel.
"NOW, THE PARTIES TO THIS AGREEMENT, do hereby mutually agree as under:--
(1) The children, Aaraze Abbas Haji and Hamza Hussain Haji shall remain in the custody of the party of the First Part.
(2) The party of the Second part shall have the following visitation rights:--
(a) shall at all times have the right to take the custody of the children on weekend i.e, from 17-00 hours Friday to Saturday until 2000 hours;
(b) at the desire of the party of the Second Part the children may spend more time with the party of the Second part as and when practicable;
(c) Children will spend equal time between the parties during winter and summer school holidays unless otherwise agreed between them.
(d) During the summer vacation the party of the First Part and the party of the Second Part may take the children for vacation after due permission of the other party;
(e) During the 7th to 11th Muharamul Harram the Children shall remain with the party of the First Part while during public holiday and two Eid Festivals, both the parties shall have equal access to the Children after mutual agreement regarding timings between them.
(0 The children shall have access to both the party of First Part and the party of the Second Part who together after discussion shall determine the visitation of the children against the following criteria:--
(i) education of the children;
(ii) emotional needs of the children;
(iii) availability of either the party of the First Part or the arty of, the Second Part;
(iv) consecutive nights of stay; and
(v) sleeping time of the children.
(4) It is agreed by and between the parties that all important decisions regarding the children shall be taken jointly in an atmosphere of mutual trust and good will keeping in view the interests and welfare of the children as the paramount consideration.
(8) Each of the parties will abstain from show of temper towards the other. Both the parties to the Agreement pledge to behave in a civilized manner with each other without casting any aspersion and or blaming each other. The parties will be provocative towards each other and will create harmony and love between the children."
9. Mr. Abdul Rehman, learned counsel for the mother submitted that for 2-5-2009 to 28-5-2008 not even weekly visits were allowed. He referred to para. 2(b) of the agreement wherein it had been provided that at the desire of the mother children may spend more time with the mother as and when practicable. He submitted that children after tuition from 4-00 to 6-30 p.m. Are free and therefore there should not be any objection to the children meeting the mother after school and before the they are required to go for tuition and during that time having lunch with the mother.
Learned counsel submitted that what mother was asking is access to child and this is the right given to her under the agreement. He referred to order, dated 2-6-2008 where the learned Court below had observed that application under section 25 of the Guardians and Wards Act, filed by the mother shall be proceeded with and decided in accordance with the law. Learned counsel relied upon Mst. Hameed Mai v. Irshad Hussain, PLD 2002 SC 267.
10. Mrs, Ismat Mehdi, learned counsel for the father stated that marriage of the mother with the father was her second marriage and from first marriage in 1983 she has a son named Changez Khan. According to learned counsel mobile phone purchased by the mother for the child is still with the child. She submitted that mother had illegally retained custody for 38 days starting from 25-3- 2009 when an order of the Court she returned the custody. She relied upon Chuharmal Issardas v.
Khubchand K. Shahani, PLD 1955 Sindh 410.
11. On the question of whether the High Court has power to punish under the Family Court In re: Suo Motu Case No,1 of 2007 (Manhandling of Hon'ble Mr. Justice Iftikhar Muhammad Chaudhry by Police) PLD 2007 SC 688.
12. I have considered the submissions made by the learned counsel and have gone through the record of the cases as well as case law cited by the learned counsel.
13. In Hameed Mai's case (supra) dispute was between maternal grandmother and father about custody of a girl child aged about 11 yeaRs, Mother of the child died at time of birth. It was alleged that the custody of the minor was handed over to the grandmother through habeas petition.
Father filed an application before Guardian Judge and the matter was compromised. In terms of compromise custody of the child was handed over to the father upon her attaining age of 7 years, Supreme Court observed that in such matters paramount consideration is welfare of the child. It noted that though there had been a compromise but later on circumstances materially stood changed and question of welfare of minor again cropped up in a more serious manner. Supreme Court observed that the custody of minor cannot be effectively settled by private compromise. It further held that Courts' powers with regard to custody of minor are in the nature of parental jurisdiction. Therefore, the Supreme Court observed that the Court must act in a way a wise parent would to.
14. In Chuharmal Issadar's (supra) case, in a matter relating to insolvency of a partnership firm, a compromise was arrived at and deed was accordingly executed. Thereafter a dispute arose and a criminal complaint was filed which proceedings were quashed by the Chief Court of Sindh.
Thereafter an article appeared in weekly newspapers in which an imaginary conversation on telephone was printed. Contempt of Court application was filed and the question was whether Chief Court of Sindh can take cognizance of contempt of subordinate Courts. After extensively referring to the case law from Madras, Calcutta and Bombay High Courts, Chief Justice of Sindh Chief Court expressed view that the fact that this Court is a Superior Court of Record with powers of supervision over all Subordinate Courts in the province, does not give this Court jurisdiction to punish contempt of Subordinate Courts. This case is clearly distinguishable because it has been specifically provided in section 5(3) of the Contempt of Court Act, 1976 that the High Court has jurisdiction in respect of contempt of Courts subordinate to it as it exercises in respect of contempt of High Court itself.
15. In Suo Motu Case No,1 of 2007, it was held that tender of unconditional apology does not per se wipe off gravity of offence of contempt.
16. I have reproduced above relevant paras of the agreement. If I look at agreement I would classify its provisions in two categories; hard provisions and soft provisions. Hard provisions are contained in Clause (1) and Clauses 2(a), 2(c), 2(d) and 2(e) and soft A provisions are contained in clauses 2(c), 2(f) and 4. Hard provisions are clear and well defined and there has not been any dispute about hard provisions. Soft provisions are in reality dependent upon mutual goodwill of the parties.
For example in Clause 2(b) it is stated that at the desire of the party of the Second Part the children may spend more time with the party of the Second Part as and when practicable. Would it be practicable or would it not be practicable more often than not would be a question of varying interpretations between the two parties. The Court cannot be expected to micro-manage such relationships between the parties.
17. In the matters of child custody it is very unfortunate that bond of trust between the two parents is not merely frayed but in rather completely snapped. Tattered shroud of paper arrangement can never be sufficient to hide ugly face of scars of shattered relationship. Therefore provisions in agreements which depend upon goodwill; good faith and tolerance are very rarely followed and are more often than not become cause of further bricking, further recriminations and further litigation. Probably that is the reason when a Court decides questions relating to, custody of children it decides on the basis of hard aspect. Its orders must be clear, intelligible and understandable, leaving no room for competing interpretations. Unfortunately what has happened is this case that a prepared compromise was filed which left many soft edges, many things left to goodwill of the parties and much room for vying with competing interpretations, both as to words and as to intentions of the parties. This has already created many problems and I would not be surprised if many more problems arise in future.
18. Power to punish for Contempt of Court is power of last resort. Power of Contempt of Court should not be used indiscriminately to penalize persons. I think it was Lord Dining who said that respect for Courts must rest on firmer foundations than, the power to punish for C contempt. What is really meant was that it is on the one hand clarity of orders of a Court and on the other hand respect for judicial integrity and independence which guarantees respect and obedience of a Court. Mr. Justice Sabibuddin Ahmed in one case distinguished between obedience to an order of Court and acceptance of an order of a Court. The former entails act of physical compliance. It may or may not have any element of intellectual acceptance. The latter means much more than that. It means and includes both physical compliance and intellectual acceptance. Now if agreements are drafted leaving many murky areas, they may be based on good faith, in fact they are based on presumption of good faith, on part of both parties, in this society given all the socio cultural complexes which, almost all if not the all of us, inherently suffer from it would be rather too much to expect persons who have separated from each other in bitterness and acrimony, to maintain a relationship of trust and good faith and to willingly follow an agreement particularly when its many clause contain soft and rounded terms.
19. If one really goes into conduct of the two parties, none of them will come out unscathed. There is much that can be said against both sides. I do not think interests of the minors will be served in any sense of the words whatsoever if an order punishing one or the other or both is passed. Jurisdiction in family matters, as has been said by the Supreme Court in Hameed Mai's case is parental jurisdiction. I do not think punishing either the father or the mother or both for Contempt of Court would in any way and in any sense advance either the cause of the D minors or given the tenor of the agreement/compromise lead to more faithful observance of soft aspects of the agreement. In adviserial system of justice that is hallmark of Anglo Saxon Judicial System, winner and the loser rarely behave with good faith for each other. I do not want any winner or loser in this matter. That is because ultimately loser will be the children. Therefore in my opinion this is a case where judicial restraint should be followed.
20. Applications are already pending under section 25 of the Guardians and Wards Act. As far as, hard aspects of the agreement such as those delineated in Clause (1), Clauses 2(a), 2(c), 2(d) & 2(e) are concerned, the parties are directed to strictly follow them. As far as other clauses are concerned they may make appropriate applications before the Court below for such order which the Court below may deem appropriate and proper in the circumstances of the litigation between the parties.
21. Criminal Miscellaneous Application No,112 of 2009 and Criminal Miscellaneous Application No,160 of 2009 are consequently disposed of.