1. MUHAMMAD FARRUKH IRFAN KHAN, J.--- The petitioner is aggrieved of the conditional order dated 26-7-2013 passed by the learned Judge Family Court only to the extent whereby his visitation rights qua his minor children were made subject to submission of two surety bonds in the sum of Rs.10,00,000 each with two local sureties for the satisfaction of court.
2. 2.Facts of the case in brief are that respondent No.2 filed a suit for dissolution of marriage and custody of minors which was contested by the petitioner by filing written statement. During the proceedings of the suit, vide order dated 4-7-2013 the petitioner got recorded his statement that he has no objection in decreeing the suit of respondent No.2 for dissolution of marriage and custody of minors provided he was given visitation rights qua the minors. Vide order dated 26-7- 2013, learned counsel for respondent No.2 got recorded the statement on her behalf that respondent No.2 has no objection to accede to the offer of the petitioner with regard to visitation rights of the minors and in the light of said statement, the learned Judge Family Court besides decreeing the suit of respondent No.2 for dissolution of marriage on the grounds of Khula also granted Visitation rights to the petitioner in the following terms:--- "So far as, the suit of plaintiff for custody of minor plaintiffs Nos.2 and 3 is concerned, the same is also decreed in the light of written statement filed by the defendant as well as his statement recorded on 4-7-2013. Whereas, in the light of statement of the learned counsel for the plaintiff recorded on today and by considering the request of defendant, mentioned in para 16 of his written statement as well as in the interest of justice his prayer for visitation rights of minors plaintiffs Nos.2 and 3 is also allowed and defendant is held entitled to meet his children as and when he came to Pakistan for two times in a month subject to advance intimation of 24 hours to plaintiff No.1 and submission of two surety bonds in the sum of Rs.10,00,000 each with two local sureties for the satisfaction of court."
3. 3.Learned counsel for the petitioner submits that the impugned order requiring the petitioner to submit two surety bonds of such a huge amount is against his fundamental rights; that the petitioner is the real father of the minors and is so conscious of their welfare that instead of dragging them into litigation he not only got recorded the statement that the minors may be allowed to remain in custody of their mother but also volunteered to pay an amount of Rs.50,000 per month per child as their maintenance; that to see his minor children is the fundamental right of the petitioner guaranteed by Islam and the Constitution of Islamic Republic of Pakistan and the same cannot be restricted by imposing such condition of submission of surety bonds in particular when respondent No.2 did not show any apprehension of removing the minors from the territorial jurisdiction of this Court by the petitioner; that the impugned order is illegal, ultra vires, void ab initio and is liable to be set aside.
4. 4.On the other hand, learned counsel for respondent No.2 submits that against the impugned order remedy of filing of appeal is available to the petitioner as such this Constitutional petition is not maintainable.
5. 5.I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
6. 6.Admittedly, suit of respondent No.2 for dissolution of marriage as well as custody of minors was decreed with the consent of the parties subject to affording the petitioner opportunity to meet his minor children. At the time of passing of impugned order, neither respondent No.2 showed any apprehension of removal of the minors from the territorial jurisdiction of the Court nor her counsel requested for any such condition as imposed by the learned Judge Family Court. Submissions of the parties and material attached with this petition show that all the proceedings before the learned Judge Family Court were conducted in most congenial and harmonious manner and the bona fide of the petitioner can be adjudged from the fact that without dragging the minors into litigation he not only allowed them to remain in custody of their mother but also volunteered to pay them maintenance at the rate of Rs.50,000 per month per head. The matter was decided with the concurrence of the parties, therefore, the learned Judge Family Court was not justified in passing an order which was beyond the prayer of the parties. Even otherwise, the petitioner is the real father of the minors and in the absence of any evidence or even an iota of inference that the petitioner is likely to or will attempt to remove the minors from the territorial jurisdiction of the learned Family Court his right to see his children cannot be curtailed by imposing the condition of submission of two sureties in the amount of rupees one million each, every time he needs to meet his own children.
7. 7.So far as the objection of learned counsel for respondent No.2 with regard to maintainability of this Constitutional petition in the presence of alternate remedy of filing of appeal is concerned, suffice it to say that if an order is passed by any Court or Tribunal in violation of law and without lawful authority the same can be questioned by an aggrieved person by invoking Constitutional jurisdiction of this Court. Reliance is placed in the case reported as Dilawar Jan v. Gul Rehman and 5 others (PLD 2001 Supreme Court 149) wherein it has been laid down as under:--- "We are conscious of the fact that the learned High Court in exercise of Constitutional jurisdiction cannot sit as a Court of appeal but where order passed by Court, suffers from any jurisdictional defect or violates any provision of law, invocation of Constitutional jurisdiction would be justified and if the error is so glaring and patent that it may not be acceptable that in such an eventuality the High Courts have interfered when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken."
8. 8.The impugned order of the learned Judge Family Court with regard to imposition of above condition is illegal and arbitrary exercise of power and beyond the prayer of the parties as such technicalities cannot prevent this Court to strike down the same in exercise of its Constitutional jurisdiction, in particular when it is apparent that from the act of Court or tribunal fundamental right of a citizen of this country is infringed illegally. Reliance is placed on case reported as Brig.
9. Muhammad Bashir v. Abdul Karim and others (PLD 2004 Supreme Court 271) wherein it has been laid down as under:--- "In our considered view, technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive."
10. 9.For the reasons discussed above, this writ petition is allowed and impugned order of the learned Judge Family Court dated 26-7-2013 is set aside to the extent of imposition of condition with regard to submission of two surety bonds in the sum of Rs.10,00,000 each with two local sureties for the satisfaction of court and is modified to the effect that the petitioner will be entitled to meet his children twice in a month when he will be in Pakistan subject to advance intimation of 72 hours to respondent No.2. It is, however, clarified that if the petitioner misuses this concession granted by the Court or attempts to remove the minors from the territorial jurisdiction of the learned Guardian Court, he would be liable to face Contempt of Court proceedings and in the interest of welfare of the minors may also lose the right of visitation of his children.