' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of the judgments dated 8-5-2012 and 28-11-2012 passed by the learned courts below. Through the former they learned Guardian Judge, Sialkot dismissed the application of the petitioner for custody of minor son namely Taha and through the latter learned Addl. District Judge, Sialkot dismissed his appeal filed against the order of the learned Guardian Judge.
2. Facts of the case in brief are that the petitioner filed application for custody of aforesaid minor inter alia on the grounds that respondent No,3 is not looking after the minor properly and gradually putting hatred in his mind against the petitioner; that he can provide best health and education to the minor as compared to the respondent.
3. Respondent No,3 contested the said petition by filing written reply wherein she alleged that the petitioner filed application for custody of the minor in order to avoid, his liability to pay maintenance allowance to the minor; that for the sake of minor she has not contracted second marriage, whereas, the petitioner has further entered into marriage; that the welfare of minor lies in his custody with the real mother.
4. Out of the divergent pleadings of the parties, learned Guardian Judge framed necessary issues.
Parties adduced evidence in support of their respective contentions. After hearing the arguments, learned Guardian Judge vide impugned judgment dated 8-5-2012 dismissed the application of the petitioner. Being aggrieved the petitioner filed an appeal which also met the same fate vide impugned judgment dated 28-11-2012. Hence, this Constitutional petition.
5. Learned counsel for the petitioner submits that the judgments of both the courts below are based on surmises and conjectures and result of mis-reading and non-reading of the evidence; that the petitioner is regularly paying maintenance to the minor at the rate fixed by the learned Judge Family Court; that the minor is at growing up stage and 'needs consideration of his father; that the petitioner has sufficient source of income and can look after the minor properly as compared to respondent No,3; that the learned courts below even did not grant to the petitioner the right of meeting with the minor; that the petitioner being the real father is entitled to have visitation right; that even if this Court does not find any force in this petition, the minor may be allowed to stay overnight with the petitioner, so that he may develop affiliation with his real father.
6. I have heard the arguments advanced by the learned counsel for the petitioner and gone through the record.
7. The petitioner himself while appearing in the witness box during cross-examination admitted that after few months of pronouncing divorce to the respondent he contracted second marriage.
He also admitted that suit for recovery of maintenance allowance has been decreed in favour of the minor and he has not paid/deposited any amount. It is also apparent from the record that the petitioner divorced the respondent during her pregnancy and the minor was born during Iddat period and prior to filing of suit for maintenance he did not make any effort for meeting with the minor.
8. On the other hand, special attorney of respondent while appearing in the witness box as DWI deposed that a decree of maintenance allowance at the rate of Rs,2500 per month has been passed against the petitioner whose appeal thereagainst was also dismissed by this Court and he was directed to pay 1/3rd of the decretal amount but he did not comply with the said order and the execution petition is pending against him.
9. Perusal of the evidence makes it abundantly clear that from the time of separation the petitioner never met with the minor. It has also been established on record that the petitioner filed the application for custody of the minor subsequent to the suit for maintenance allowance filed by the respondent. In the above back drop it can safely be presumed that the petitioner has least interest in the welfare of minor and he has filed the instant petition just to avoid payment of maintenance allowance to the minor. The minor is living with the respondent/real mother since his birth and she has not contracted second marriage for the sake of the minor. The minor was produced before the learned Guardian Judge, who observed that the minor is enjoying good health. He further observed that the minor met with the petitioner in a pleasant mood which negates the apprehension of the petitioner that respondent is nourishing hatred in the mind of minor. The petitioner remains outside the house for the whole day in pursuit of earning his livelihood and in this situation the minor cannot be left in solitude or with his step mother, in preference to his real mother who, record shows is devoting here life for bringing him up.
10. So far as the contention of the learned counsel that the petitioner is a man of means and respondent No,3 has no source of income is concerned, suffice is to say that the petitioner being father of the minor is legally and morally bound to maintain him even if he resides with her mother, therefore, on the pretext of having limited resource a mother cannot be deprived of the custody of the minor. The Hon'ble Supreme Court of Pakistan in case reported as Mst. Razia Bibi v. Riaz Ahmad and another (2004 SCM R 821) almost in the identical circumstances has observed in the following terms:- it is to be noted for all concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor. The petitioner lady has been looking after her minor son since his birth and maintaining him in a good environment. The father, who is 'under the law to maintain his child, has not provided any maintenance till date. The minor is living since his birth with his mother and welfare of the child, in the circumstances, also lies in favour of the petitioner. It is true that non-maintenance on the part of the father would not automatically disentitle him from the custody of his child but this would one of the circumstances for determining the welfare of the minor. This certainly shows the conduct of the respondent and in the case in hand, as already stated, right from the birth of the child the respondent has not maintained his son. The respondent, as stated by the learned counsel, has contracted second marriage and the mother, on the contrary, has not contracted second marriage. She is devoting her complete attention towards the upbringing of her minor son. Furthermore, it would be harsh at this juncture to hand over the custody of the minor to the respondent leaving him at the mercy of step mother in presence of his real mother who is properly maintaining him."
10. As far as the contention of the petitioner that the learned courts below have not even granted him visitation right is concerned, the same is misconceived. The learned Guardian Judge vide its impugned judgment has given the schedule of meeting of the minor with the petitioner. The learned guardian Judge shall ensure that the said schedule is strictly complied with in letter and spirit. The petitioner may also file application before the learned Guardian Judge for overnight stay of the minor on various occasions such as Eids and birthday of the minor, which shall of course be decided by the said court as per prevailing circumstances in accordance with law. However, one disturbing aspect of the case is that the petitioner has not deposited any amount on account of past and current maintenance of the minor He is, therefore, directed to do so at the earliest possible opportunity as his deliberate failure to pay the maintenance of the minor child may lead to adverse consequences for the minor, in which case the petitioner would also be liable to be prosecuted under the penal laws of the country and this aspect would also be taken into consideration by the learned Guardian Court, while adjudicating any future request for enhancement of duration of visitation and by this Court while considering any future petition for equitable relief by the petitioner.
11. Learned counsel for the petitioner is unable to point out any illegality or irregularity in the impugned orders warranting interference by this Court in its Constitutional jurisdiction. Resultantly, this petition ' being devoid of any force is dismissed in-limine with the above observations.