MUHAMMAD YOUNIS THAHEEM, J.---Through this single judgment instant petition along with W.P.
No,4918-P/2016, are disposed of together being common questions of facts and law are involved in both these petitions:--
(i) Brief facts in W.P. No,1022-P/ 2014 are that respondent No,1 for herself and for two minors, Mueed Ahmad (Plaintiff No,2) and Linta Haseeb (plaintiff No,3) filed family suit for dower, maintenance etc which was decreed in favour of respondents while decree for restitution of conjugal rights subject to payment of dower was passed in favour of petitioner vide judgment and decree dated 30.01.2012. The same judgment and decree was assailed by both the parties by filing their respective family appeals vide which Family Appeal No,5/FCA was accepted, Consequently impugned appeal and consolidated judgment and decree in Family Suit No,80/FC of 2011 to the extent of custody of minor was set aside and case was remanded back to the learned trial Court with direction to decide the custody of minors on the basis of evidence in accordance with law while Appeal No,8/FCA filed by Wajiha Wakeel (present respondent No,1) was partially allowed vide same consolidated judgment dated 10.05.2012 by granting decree for relief (B) in the relief para of plaint regarding house in lieu of dower. After remand, the Judge Family Court-II, Peshawar decided Family Suit No,81/FC neem and 80/FC neem vide consolidated judgment dated 26.02.2013. The present petitioner feeling aggrieved from the above said judgment dated 26.02.2013 after remand filed Family Appeal No,7/FCA which was accepted with certain directions about scheduling of visitation rights of the parties to meet children vide judgment dated 15.01.2014. The present petitioner still dissatisfied from the judgments and decrees of two Courts below filed the instant petition on the ground mentioned therein.
(ii) Brief facts in W.P. No,4918-P/ 2016 are that present petitioner filed Family Suit No,81/FC for recovery of dower etc as discussed above against her husband (respondent No,1) and his mother Azra Begum. Learned Family Court summoned defendants Nos,1 and 2 among them present peti- tioner/defendant No,1 submitted his written statement by raising various legal as well as factual objections particularly seeking relief of restitution of conjugal rights while in his suit No,80/FC, he prayed a decree for custody of minors. Both suits one filed by wife (respondent No,1) for dower etc and suit filed by petitioner (husband) for custody of minors were consolidated. The learned trial Court after reconciliation proceedings recorded evidence and after conclusion of trial, family suit of respondent No,1 and two minors wasdecreed vide single consolidated judgment dated 30.01.2012, but no findings with regard to other Family Suit No,80/FC for custody of minors was given. The concluding para of consolidated judgment dated 30.01.2012 is reproduced as under:- "Relief: In sequel to above discussion the plaintiff is entitled to recover her dower to the extent of cash Rs,10,000/-, she is also allowed to recover her dowry articles. She is further allowed to recover her maintenance @ Rs,1000/- per month since April 2009 till she remains in the wedlock of defendant.
Plaintiffs Nos,2 and 3 are also entitle to recover maintenance from defendant/father from 12th April 2009 till the decision of the case @ Rs,1000/- each per month along with future maintenance at the rate of Rs,2000/- per month with 15 % increase per annum from the date of decision till plaintiff No,3 got married and plaintiff No,2 attains majority i,e, 18 years, maintenance paid during proceedings shall be excluded. A decree for restitution of conjugal rights is passed in favour of defendant subject to payment of dowser. Till reunion of the parties both will follow the visitation of minors plan as already agreed. Rest of claim of plaintiff stands dismissed."
As discussed in the facts of W.P. No,1022- P/2014, both the parties feeling aggrieved from the above said consolidated judgment dated 30.01.2012, filed their respective appeals. The learned appellate Court decided both the Family Appeals No,5/2012 filed by Haseeb Ahmad and Family Appeal No,8/2012 filed by Wajiha Wakeel vide consolidated judgment dated 10.05.2012, resultantly, Appeal No,5/FCA was partially accepted and judgment and decree dated 30.01.2012 relating to Suit No,80/FC for the custody of minors was set aside and suit was remanded back to the learned trial Court with the direction to decide the custody of minors on the basis of evidence while Family Appeal No,8/FCA filed by Wajiha Wakeel in view of consolidated judgment dated 10.05.2012 was partially accepted by passing decree in addition to decree passed by learned Family Court for relief (B) by granting decree of 1/2 share house in lieu of dower, however the learned appellate Court dismissed the relief relating to enhancement of maintenance and setting aside decree for restitution of conjugal rights. After remand the learned family Court/Civil Judge-III, Peshawar passed decree vide impugned consolidated judgment dated 26.02.2013 vide which the learned trial Court decided the custody and visitation rights of the minors by granting custody of minors to the mother. The present respondent No,1 Haseeb Ahmad feeling aggrieved from the aforesaid judgment dated 26.02.2013 filed Family Appeal No,07/2013 which after hearing was dismissed vide judgment passed on 15.01.2014 with certain observations by giving visitation plan which is reproduced as below:-- "Perusal of the order impugned before this Court would show that only the decree for visitation rights was passed and neither such rescheduling was done nor was the previous routine confirmed for future. In the present scenario, keeping in view the record of the case and importance of relationship of the father with the minors, meeting once a month and that too only for 02 hours (after conclusion of the trial) does not sound reasonable and just. If the question of Hizanat is decided against the father, he at least has the right to spend one full day of a month with his kids. He is therefore, entitled to have meeting with the minors on last weekend of every month at his own residence. The pick and drop shall be arranged by the father early Sunday morning, till Sunset. Likewise, the minors shall spend 1/3rd of long holidays in the company of their father at his residence."
2. Learned counsel for petitioner/ husband argued that the judgments of learned Family Court dated 26.02.2012 and of learned Appellate Court dated 10.05.2012 and 15.01.2014 are against law, evidence and without lawful authority. He added that decree for conjugal rights has been passed in his favour while dower amount has already been paid even then respondent (wife) is refusing conjugal life with petitioner. He argued that by giving custody of minors to the respondent No,l is patent illegality which is against sharia by saying that petitioner under sharia is entitled for the custody of minor son being aged now more than 07 years. He lastly argued that matter of custody has been earlier decided in W.P. No,478-P/2014 which was disposed of vide order dated 16.06.2014 by this Court regarding visitation plan and after the lapse of two years Mst: Wajiha Wakeel has filed W.P. No,4918- P/2016 which is liable to be dismissed.
3. On the other hand learned counsel for respondent No, 1/wife and petitioner No,1 in W.P. No,4918- P/2016 argued that after disposing of W.P. No,478-P/2014 vide order dated 16.06.2014, the petitioner/husband contracted second marriage with respondent No,2 of W.P. No,4918-P/2016, so in changed events respondent No,1 to seek modification in the order dated 16.06.2014 has filed said petition for the relief prayed therein. He further argued that respondent (wife) has proved the factum of cruelty, and cause of desertion that is beating, physical torture and rupturing of her ear drum in the hands of her husband. Moreover the Nikah Nama has been admitted by husband/petitioner. He added that welfare of minors is with real mother and not with petitioner/father who has contracted second marriage, so in the changed circumstances revisiting of earlier order passed in W.P. No,478-P/ 2014 is in the interest of mother, minors and justice. He supported the judgment dated 10.05.2012 and post remand judgment passed by learned Judge Family Court dated 26.02.2013 and dated 15.01.2014 passed by learned appellate Court with reservations to the extent of visitation schedule directed by the appellate Court and also order dated 16.06.2014 in W.P. No,478-P/2014. He lastly prayed for acceptance of his petition.
4. Arguments heard and record perused.
5. From the perusal of record it is admitted position that marriage between the spouses was solemnized on 02.12.2002 vide Nikah Nama Exh.PW1/1. Before Rukhsatee the half of house measuring 03 Marla was transferred in the name of wife/respondent No,1/Wajiha Wakeel as mentioned in the Nikah Nama. During wedlock and before separation two children one minor daughter and other minor son were born who are in the custody of real mother.
6. The unfortunate day in the family life is 12.04.2009 when respondent No,1 (wife) was beaten by petitioner/husband and due to that beating respondent/wife was severely injured and her ear drum was ruptured. The factum of beating has been established from the evidence produced by plaintiff/wife.
7. Plaintiff/wife (respondent No,1) appeared in the witness box as PW-1, who produced Nikah Nama as Exh. PW1/1, and narrated the facts as alleged in her plaint, mostly about the behavior of her husband and other housemates, particularly the detail account of incident dated 12.04.2009 regarding subjecting her to physical torture and receiving serious injuries and rupturing of her ear drum. She stated that her father was called on phone to her husband house who brought her in injured condition. She was not put a single suggestion that she was not subjected to physical beating and ear drum was not ruptured. PW-4 Bilal Qureshi also in his examination in chief stated about the incident of 12.04.2009 in detail for subjecting plaintiff No,1(wife) to physical torture. He was put a question during cross examination to which he replied as below:- {{URDU TEXT}} During cross-examination this witness elaborated the onward facts after beating regarding taking her for treatment.
8. Her father Abdul Wakeel appeared as PW-5 who stated as below:-- {{URDU TEXT}} PW-5 was severely cross-examined and he remained consistent regarding incident of physical beating on 12.04.2009 as below:- {{URDU TEXT}}
9. Petitioner/husband appeared as DW-1, who admitted Nikah Nama in para No,6 of his written statement regarding transferring of 1/2 share of house in lieu of dower. He in his statement before the Court never denied incident of beating on said date i,e, 12.04.2009. During his examination in chief he stated certain facts which were neither mentioned in his plaint (suit for custody of minor) nor in his written statement about demand of Rs,2 million by the father and brother of plaintiff/wife and 10 tola gold as "Amanat" with plaintiff. His witness DW-2 Mussarat Hussain during cross examination admitted the knowledge of incident of physical beating/injury received by plaintiff/wife in the following manner. {{URDU TEXT}}
10. So from the preponderance of evidence it is established that plaintiff/wife was subjected to physical torture on 12.04.2009 and her ear drum was injured/ruptured and remained under treatment. The learned trial Court while giving findings on issue No,3 has ignored rather non read the evidence. Similarly appellate Court also overlooked this aspect and evidence in this regard, so the said findings on issue No,3 in the judgment of learned trial Court are set aside and said issue No,3 is decided in affirmative. The judgment of learned trial Court regarding other relief was maintained and learned appellate Court decreed the relief "Bay" for 1/2 share of house in lieu of dower. This Court also examined the evidence in this regard as discussed above; the petitioner has admitted the Nikah Nama in his para No,6 of written statement, even then respondent No,1 (wife) has produced evidence to prove the fixation of dower as 20 tolas gold ornaments, rupees one lac in cash as deferred dower and 1/2 share in house, detail of which is given in the plaint. So no exception could be taken to judgment of learned appellate Court dated 10.05.2012 and 15.01.2014.
11.So far as the question of custody of IC minors is concerned both the Courts have decided the question of custody in accordance with law correctly as the mother of petitioner (husband) is an old lady, who C herself need extra care, so how she can take care of two minor children and at the time of disposing of W.P. No,478-P/2014 only the mother of Haseeb Ahmad was there in the house but after the above said order dated 16.06.2016 in W.P. No,478-P/2014 the present petitioner contracted second marriage with respondent No,2 of W.P. No,4918-P/2016. Admittedly she being step mother for minors could not be burdened with care of minors nor it is her responsibility to take care, nor she want to become prey to social criticism particularly when their real mother is alive and is meticulously contesting the case for the custody of minors, among them one is the son aged about 07 years and other is the minor daughter. PW-5 the grand maternal father stated about batter their better look after, schooling of minors, and feeling happy while residing with mother.
12. The prime principle in such like cases is the welfare of minors, so during subsistence of marriage, the father contracted second marriage and did not think about the future of his minor children by giving preference to second marriage than to the minors or to the first wife. Moreover it is centuries old human beings D experience relating to changed behavior of father when he contracts second marriage, as his conduct and behavior towards the minors does not remain affectionate and filled with Jove as expressed in old Saraiki maxim ( 431.e.r,L,(317 ). In this respect wisdom is derived from the judgment cited as 1996 CLC Karachi page-1 titled as "Captain S.M.
Aslam v. Mst:Rubi Akhtar".
13.So in above discussed changed scenario, the visitation plan directed in order dated 16.06.2016 in W.P. No,478- P/2014 needs re-visitation, review and modification. Therefore this Court after going through the entire record and admissionsmade by petitioner No,1 /husband that he has contracted second marriage with Mst. Maria Shareef/ respondent No,2 of W.P. No,4918-P/2016, it is held that W.P. No,4918-P/2016 in changed scenario is maintainable and partially allowed resultantly the observations made in judgment of learned Additional District Judge-IX, Peshawar dated 15.01.2014 are expunged with regard to visitation plan devised as such and the visitation plan directed by this Court vide order dated 16.06.2014 in W.P. No,478-P/ 2014 is modified as below.
14.Therefore, the order passed by learned trial Court dated 26.02.2013, Judgment passed by learned Additional District Judge-IX, Peshawar dated 10.05.2012 and judgment passed by appellate Court dated 15.01.2014 are maintained and to the extent of visitation plan are set aside and modified in the light of observations made in this judgment.
15.Thus in view of above discussion Writ Petition No,4918-P-2016 filed by respondent No, 1/wife is partially allowed while Writ Petition No,1022-P/2014 filed by petitioner/husband is dismissed.
However father/petitioner is allowed to meet his children once a month. Mode of visitation plan for once a month will be decided by learned Family Court/ Executing Court keeping in view the comfortability of parties, education and health conditions of the minors that also in the Court premises from 09:00 AM till the rising of the Court or what the learned Executing Court deem it feasible and proper in the interest of minors in view of above. Similarly learned Executing Court would upon application by father can grant custody of both minors for second day of Eid-ul-Fither and Eid-ul-Azha and the process of handing over to father and return to mother for Eid purpose shall be arranged through a third person who shall be impartial, good natured and if possible close relative of parties.