MAIN CASE C.M. No,1 of 2012 C.M. No,1057 of 2012 ' MAMOON RASHID SHEIKH, J.---The brief facts giving rise to this petition are to the effect that petitioner No,1 and respondent No,1 were married to each other on 21-1-2006. They have one daughter (the minor) who was born on 18-12-2006 and has been arrayed as petitioner No,2. The relationship between petitioner No,1 and respondent No,1, however, deteriorated resulting in the petitioners living apart from respondent No, 1 . As a consequence, litigation ensued between the parties which included respondent No, 1 's petition, against the petitioners, under section 25 of the Guardians and Wards Act, 1890, for custody of the minor.
2. The petition was resisted by petitioner No,1
3. Issues were framed and the parties led their respective evidence. On the basis of the evidence so led respondent No, 1 's petition was dismissed by the learned Guardian Judge, Rawalpindi, through judgment dated 19-3-2012 inter alia on the grounds that since respondent No,1 had taken a second wife and also has children from her it would not be in the welfare of the minor to hand over her custody to respondent No,1. Respondent No,1 was, however, granted visitation rights in the following terms:-- "In view of my findings on above issues, custody petition in hand is hereby dismissed. Meeting schedule of minor daughter is formulated as follows:-
(I) First 15-days of Summer vacations
(2) 2nd days of every Eid, from 9-00 am till 6-00 p.m.
(3) Other days ' Every second and forth Sunday of each month from 9.00 a.m. To 6.00 pm ' No order as to costs. Memo of cost be prepared. File be consigned to the record room after its due completion."
4. Respondent No,1 did not file an appeal against the judgment of the learned Guardian Judge, however, the petitioners feeling aggrieved of the visitation rights having been granted to respondent No,1 filed an appeal before the learned District Judge, Rawalpindi. The said appeal was accepted by the learned Additional District Judge, Rawalpindi, through judgment dated 25-6-2012 in the following terms:- "10. Admittedly the applicant/respondent father is residing and working at Lahore. Copy of Nikah Nama dated 21-1-2006 which is on the file shows that applicant was residing at Rawalpindi and Nikah was performed at Satellite Town Rawalpindi. He also has contracted second marriage. It would be harsh for the minor aged about 5-1/2 years to travel from Rawalpindi to Lahore on second day of Eid or on second Sunday and fourth Sunday of each month and then to return to Rawalpindi. The schedule of 15 days of first spell of summer vacations also appears harsh. It would be difficult for minor to live away from her mother for fifteen days consecutively. Under these circumstances this schedule appears unjust and against the circumstances of the parties as well as minor, therefore, same is set aside and following schedule is fixed.
' The minor shall remain in custody of father for second week and second last of week of summer vacation and for three mid days of winter vacations. The father/respondent would visit the minor also on every last Saturday of the month for 2 hours from 9-00 a.m. To 11-00 a.m. In the court of learned Guardian Judge, Rawalpindi/trial Court. The schedule for vacations shall take effect from coming winter vacation of this year because when appellant left house of respondent on 19-12-2007 the age of minor was only one year. Due to schedule monthly visits minor would become well familiar with father and it would become easy for her to pass vacations with her father at Lahore away from her mother."
5. Still feeling aggrieved the petitioners have filed the instant petition whereby they have challenged the schedule of visitation as amended by the learned Additional District Judge.
Respondent No,1 has, however, not filed a petition against the judgment of the learned Additional District Judge.
6. At the outset the parties were provided with an opportunity to reconcile their differences but without success.
7. It is submitted by the learned counsel for the petitioners that both learned Courts below have erred in allowing visitation rights to respondent No,1 in the terms referred to above. Admittedly respondent No,1 has taken a second wife and he has children from his second marriage. The custody of the minor was not granted to respondent No,1 primarily for the reason that it would not be in the interest of the minor to live with her step-mother. Contends that if the presence of the stepmother was not in the welfare of the minor for the purposes of granting custody of the minor to respondent No,1 then the same holds true for the prolonged periods of time the minor is to be handed over to respondent No,1 during the minor's summer and winter (school) vacation. Further submits that the learned Courts below have failed to appreciate that the atmosphere in respondent No,1 's house is not conducive for the minor to even spend one day thereat what to talk of a week to ten days' at a stretch. Prays that the schedule fixed by respondent No,2 may be set aside.
8. The learned counsel for the petitioners relied upon Mst. Imtiaz Begum v. Sheikh Azmat Ullah (PLD 1959 (W.P) Lahore 750), Mst. Rasheedan Bibi v. Additional District Judge and 2 others (2012 CLC 784) and Muhammad Zaman and 2 others v. Ameer Hamza (2009 CLC 230).
9. The learned counsel for respondent No,1 submits that the good faith of respondent No,1 is manifest from the fact that he neither filed an appeal nor a constitutional petition against the decisions of the learned Courts below. Respondent No,1 being the father of the minor has a right to meet and visit her. The schedule as fixed by respondent No,2 is in accordance with the law. Further submits that the presence of the stepmother should not be used as a tool to deprive respondent No,1 of his rights as a father. Further submits that it would not be in the welfare of the minor if respondent No,1 is kept away from her as this would lead to emotional deprivation and loss of love and affection which a father can shower upon his child. Relies on Mst. Maryam Masood v. Mughisuddin Mirza and 2 others (2009 CLC 1443), Altaf Akhtar Alvi v. Mst. Sadaf Ara and others (2008 SCM R 527), Razia Bibi v.
Additional District Judge, Sargodha and 2 others (2009 YLR 222), Muhammad Ali v. Rehmat Bibi and 2 others (2006 YLR 4), Saad Amanullah Khan v. IVthSenior Civil Judge, (South), Karachi and 3 others (PLD 2008 Karachi 499) and Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others (PLD 2003 Supreme Court 877).
10. I have considered the arguments addressed at the bar and have also gone through the record.
11. The learned counsel for the petitioners has submitted that respondent No,1 has taken a second wife and has children from her, therefore, the learned Guardian Judge did not consider it to be in the welfare of the minor to hand over her custody to respondent No,1. If the presence of the step- mother and the step-brothers/sisters is not conducive for the custody of the minor being handed over to respondent No,1 then the same holds true vis-a-vis handing over of the custody of the minor to respondent No,1 during the minor's school vacation. It has, therefore, been contended that the impugned schedule of visitation has been made in derogation of the reasoning for dismissal of respondent No,1 's petition. I am afraid I am unable to accept this argument of the learned counsel for the petitioners for the reason that a father cannot be denied the minimum right of access to his minor children nor is he to be considered like an alien enemy qua them. This has been so held in Altaf Akhtar Alvi's case (supra), cited by the learned counsel for respondent No,
1. Moreover, a father cannot be deprived of his right to meet his children as this would lead to emotional deprivation on both sides. There is no denying the fact that a child needs love, affection, care and attention of a mother but at the same time the child also needs the love, affection, company and guiding hand of a father. The contention of the learned counsel for the petitioners that in the presence of the step-mother the minor would be put at risk or at a disadvantage is not borne out from the record.
There is nothing to show that the second wife of respondent No,1 has mistreated the minor or is likely to do so. Admittedly the children of respondent No,1 are younger than the minor and there is nothing on the record to show that their presence has adversely affected the minor. As has been held in Maryam Masood's case (supra), cited by the learned counsel for respondent No,1, a step- mother is not a lady Macbeth of a witch and it cannot be always presumed that she would mistreat her step-child or harbour, malice or hatred towards her stepchild unless there is strong evidence in this regard. It has further been held in the said judgment that a minor should be allowed to spend time with his father during school vacation as during the vacation the minor has more time and is not preoccupied with his/her studies, therefore, time can be better utilized for establishing and maintaining father child relationship. In view of the foregoing I deem it to be in the welfare of the minor that respondent No,1 and the minor should have access to each other and spend time in each other's company also during the minor's vacation. The contention of the learned counsel for the petitioners is, therefore, repelled.
12. Even otherwise, the bona fide of respondent No,1 is established from the fact that admittedly he did not challenge the decision of the learned Guardian Judge or indeed of the learned Additional District Judge even though the learned Guardian Judge had dismissed respondent No, I 's petition for custody of the minor and had only allowed him visitation rights. It is petitioner No,1 who was dis- satisfied with the decision of the learned Guardian Judge and upon her appeal the visitation rights were modified to her advantage, however, she still remains dissatisfied. This leads one to the conclusion that there is acrimony between petitioner No,1 and respondent No, 1 . However, any amount of acrimony between ex-spouses should not be allowed to stand in the way of the welfare of the minor, as it is settled law that in guardianship matters welfare of the minor is of paramount consideration.
13. Moreover, I have examined the schedule of visitation as determined by respondent No,2 and find that it is based upon proper appreciation of facts brought on the record. The learned counsel for the petitioners has been unable to point out that the impugned judgment has been passed by exercise of excess of jurisdiction or that it is perverse. The learned counsel has similarly been unable to point out any illegality or material irregularity having been committed by respondent No,2 in passing the impugned judgment.
14. Before parting with this judgment I would like to point out that respondent No,1 has admittedly not been able to meet or visit the minor due to suspension of the impugned judgment through order dated 11-12-2012 passed in C.M. No,1 of 2012. In view thereof, whilst dismissing the petition for the foregoing reasons, I deem it appropriate to direct that the schedule of visitation as determined by respondent No,2 to the extent of the visitation rights of respondent No,1 during the summer/winter vacation of the minor shall become effective from the forthcoming winter vacation of the minor. Respondent No,1 shall, however, be entitled to visit the minor on a monthly basis as per the terms of the impugned visitation schedule.
15. This petition is accordingly dismissed with the above observations.
' The parties are left to bear their own costs.