1. ' SYED HASAN AZHAR RIZVI, J. By this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner prayed for the following reliefs:- `(A) Mrow the petitioner to take temporary custody of the minor child Iraj Imran during her summer vacations from School i.e, from 15 June, 2013 till 15 August, 2013 as the petitioner being the sole legal guardian is entitled to spend exclusive time with his daughter.
(B) Modify the impugned order sated 31-5-2013 allowing custody of the minor to the petitioner during her summer vacations.
(C) Any other relief this Hon'ble Court deems fit and appropriate.
(D) Cost of the petition."
2. ' Brief facts of the case are that petitioner contracted marriage with respondent No,1 on 10-9-2004.
3. Out of this wedlock one child namely Iraj Imran was born on 11th August, 2005. The age of minor daughter Iraj is 8 years. The petitioner and respondent No,1 both are working parents. Due to differences between the spouses, the petitioner divorced respondent No,
1. The petitioner filed a G&W Case No,17 of 2012 under section 25 of the Guardians and Wards Act seeking custody of his minor child before the learned respondent No,2 . The learned respondent No,2 as an interim arrangement passed order anted 17-3-2012 to allow an hour meetings of the petitioner with minor child on 1st and 3rd Saturdays of each calendar month. Petitioner approached the learned Family Court to allow meetings on special occasions such as Eid holidays, winter vacations, birthday of the minor etc. And the learned Family Court has allowed the petitioner to meet the minor at his own.
4. Such meeting was allowed in presence of the Head bailiff of District South Karachi upon payment of cost and after providing requisite security to the Court which included Passports of both minor and the petitioner. The petitioner moved an application for temporary custody of the minor during summer vacations of the minor child before the learned Family Judge, which was dismissed vide order dated 31-5-2013. Therefore, the petitioner filed the present petition.
5. ' I have heard Mr. Haseeb Jamali learned counsel for the petitioner, Mr. Rizwan Ahmed Siddiqui, learned counsel for the respondent No,1 and perused the material available on record.
6. ' Mr. Haseeb Jamali, learned counsel for the petitioner contended that the learned respondent No,2 while passing the impugned order has failed to consider the prayer of the petitioner and failed to completely adjudicate upon the application and passed the impugned order in a mechanical manner. He contended that the application was not for enhance the meeting time but for temporary custody of the minor Iraj during summer vacations. He vehemently urged that respondent No,1 has not specifically denied every para of the memo. Of petition, which rather can presume admission on her part. He submitted that the whild was in custody of respondent No,1, who is a full time working doctor and is away from home on lengthy working hours and the minor left at the mercy of her paternal grandmother and servants. He also submitted that time and again custody of the minor child was handed over to the petitioner, who being loving and caring father, proved responsibility by returning the custody of minor child at the time fixed the learned Family Court. In this regard, learned counsel has referred to the bailiff's report and submitted that neither the bailiff has made any sort of complaint nor the respondent No,1 for any undue advantage taken by the petitioner under the orders of the learned Family Court. He also urged that on the birth day of Baby Iraj the custody was handed over to the petitioner for celebrating the birthday. He further submitted that on Eid holiday's custody was allowed from 5.00 p.m. To 10 p.m. Under the supervision of bailiff. He submitted that similarly during winter holidays the custody was handed over to the petitioner on every alternate day from 11.00 a.m. To 4.00 p.m. He submitted that during winter holidays all the meetings were held in time and under constant supervision of the Court bailiff. He submitted that Baby Iraj is very closely attached to the petitioner and her paternal granarents. He also submitted that petitioner regularly depositing the maintenance charges fixed by learned respondent No,2 in the sum of Rs,30,000 per month without fail. Learned counsel has also drawn my attention to the affidavit filed by petitioner's wife (step mother of minor child Iraj Imran), wherein she clearly stated that she has great love and affection for minor baby Iraj Imran and whenever the minor child will come to petitioner's house she shall take the utmost care of the minor and she shall not cause any harm to the minor child. He urged that every step mother is not a Cinderella. To fortify his submission he placed reliance on the cases of Zainab Bibi v. Zaffar lqbal (2012 MLD 762) and Mst. Zahida Parveen v. Muhammad Nawaz and another (2010 MLD 340) and Saad Amanullah Khan v.' Ayesha Tahir Shafique and another (1999 CLC 1544).
7. ' On the other hand, Mr. Rizwan Ahmed Siddiqui, learned counsel for the respondent No,1 supported the impugned order and submitted Apt the learned Family Judge rightly dismissed the application.
8. He submitted that the contents of counter-affidavit are explanatory and respondent No,1 categorically denied the allegations levelled against her and has not replied to those paragraphs which have no relevance. He contended that the learned respondent No,2 has already allowed an hour meeting twice a month, therefore, during pendency of G&W Case there is no need for enhancement of meeting time and temporary custody to the petitioner. He submitted that section 12(2) of G&W Act provides that if the minor is a female who ought not to be compelled to appear in public, the direction under subsection (1) for her production shall require her to be produced in accordance with the customs and manners of the country. He therefore, submitted that during pendency of custody case the present petition is not maintainable and liable to be dismissed with cost. In support of his submissions, he placed reliance on the cases of Sardar Hussain and others v.
9. Mst. Parveen Umer and others (PLD 2004 SC 357), Mst. Razia Bibi v. Riaz Ahmad and another (2004 SCMR 821), Nazan. Bibi v. Additional District Judge, Jhang and 2 others (2009 YLR 991), Muhammad Nazir v. Additional District Judge, Mianwali and another (2009 CLC 1010) and Mrs. Khurshid Begum v.
10. Additional District Judge Rawalpindi and 2 others (PLD 2004 Lahore 395).
11. ' I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case law cited at the bar, so also the impugned order.
12. ' Perusal of record 'reveals that petitioner filed application for temporary custody of minor child during summer vacation before learned respondent No,2, which was dismissed vide impugned order dated 31-5-2013 by holding that "Their a earance in ordinal circumstances to enhance the meeting timing." Record Further reveals that during pendency of custody case apart from regular meetings, the learned Family Court allowed custody to the petitioner on various occasions i.e, Eid, Birthday of the child and during winter vacations under the supervision of the Court bailiff. This time also the petitioner sought the same relief, but this time the learned Family Court refused such relief of temporary custody during summer vacation though the same relief was granted during winter vacations. It appears from the impugned order that the learned Family Court misconstrued the application as the application was for temporary custody, but the learned Presiding Officer while dismissing the said application held that there appears no extra ordinary circumstances to enhance the meeting timing.
13. ' The petitioner/father under Muhammadan Law is the lawful guardian of his minor child and is ordinary entitled to his custody provided it is for the welfare of the minor. The right of the father to claim custody of a minor is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct depending upon the facts and circumstances of each case. In the case in hand, time and again custody of minor child was given to the petitioner/father under the supervision of the Court bailiff, but no complaint of any sort was available on record regarding misbehavior or taken undue advantageous of the Court orders by bailiff and the respondent No, 1.
14. Petitioner and respondent No,1 both are working parents, therefore has equal right to have the custody of minor Iraj, particularly till the decision of the custody case. The petitioner is regularly depositing the maintenance of the child as fixed by the Family Court without fail. The minor Iraj is in her tender age requires love and care of both the respondent No,1 and the petitioner. Therefore, the petitioner is entitled to spend some time with her daughter at his home during summer vacations.
15. As regards the apprehension of the respondent No,1 that petitioner has contracted second marriage, it may be noted that petitioner's wife has filed her affidavit wherein she stated that she have great love and affection for minor baby and she shall not cause any harm to the minor child.
16. In my view it is sound assurance to release the apprehension of the IB respondent No,1 to some extent.
17. ' In view of the above facts and circumstances, the present petition is allowed and the impugned order dated 31-5-2013 is modified to the extent that petitioner/father during summer vacations only upto c 15th August, 2013 will take temporary custody of his daughter Iraj Imran for two days a week subject to deposit of petitioner's original Passport and furnishing of security in the sum of Rs,10,00,000 (Rupees Ten Lac Only) before the Nazir of Sessions Court (South) Karachi. The petitioner will take temporary custody of minor on every Saturday at 10.00 a.m. Fr,ijk Nazir of trial Court and return the same on Monday at 10.00 a.m. The respondent No,1 is directed to ensure presence of minor Iraj Imran on every Saturday before Nazir and on Monday for taking custody of minor Iraj. The pick and drop expenses of Rs,1,000 will be borne by the petitioner and deposit the same in advance with the Nazir of trial Court. However, it is made clear that during this interim arrangement if Eid-ul-Fittar comes on Saturday, the minor child will celebrate first day of Eid with respondent No,1 and second and third day with the petitioner, which includes two days of that week and no extra day will be allowed. The petitioner is also restrained to remove the minor Iraj from the territorial jurisdiction of this Court. This order shall cease to have affect only upto 15th August, 2013 thereafter meeting to be continued as per regular schedule.
18. ' Before parting with the order, I would direct the Assistant Registrar of this Court to write a letter to the Immigration Department along with copy of this order to ensure that petitioner and minor Baby Iraj Imran will not leave the country without prior permission of this Court.