Through this constitutional petition, the petitioner (father) has challenge the judgm ent dated 16.11.2020 passed by learned Appellate Court whereby meeting schedule of the three minors with respondent No.2 (mother) was modified.
2. Relevant facts are that respondent No.2 filed a guardian petition which was decided on 20.5.2019 by way of compromise and it was settled that minors would reside for three days with respondent No.2 (mother) and four days with petitioner (father) in a week. On 27.4.2020, second guardian petition was filed by the petitioner , in which, interim custody of the minors were handed over to the petitioner under section 12 of the Guardian and Wards Act, 1890 (Act), however , respondent No.2 was allowed to meet minors from 2:00 p.m every Saturday to 5:00 p.m every Sunday but not without the will of the minors. The appeal filed by respondent No.2 was dismissed regarding interim custody on 16.11.2020, however , the schedule of meeting was modified to the effect that minors being of impressionable age, their willingness could not be counted for their meeting with their mother . The petitioner father being aggrieved has filed this constitutional petition.
3. Learned counsel for the petitioner submits that minors do not want to meet their mother , therefore, visitation schedule is not sustainable without consent of the minors. Learned counsel for the respondent No.2 who was present on watching brief put in appearance and supported the impugned visitation schedule.
4. Arguments heard. It is a recognizing principal that the question of custody of visitation schedule cannot be determined solely by deduction from the rule of law rather it requires an exercise of judicial discretion dependent upon the relevant facts and circumstances . No doubt, in present case, all the three minors appeared before learned Judge Family Court and stated that they want to live with their father , however , this does not mean that they be kept away for all time from their mother and not allowed to develop any bonding with her. Learned Appellate Court has rightly observed that since both the parties are at dagger drawn, it cannot be ruled out that the minors would have been subjected to some brain washing against mother .
5. There is no cavil with the proposition that once the children reached the age of discretion, the custody matters are to be disposed of in terms of their wishes which itself will constitute their welfare. However , this rule is not absolute and honourable Supreme Court in Syed Maqsood Ali vs. Sofia Naushaba (1986 SCMR 426) clearly mention that where the parents were involved in litigation for a long period of time and children had remained with one of the parent, it cannot have been ruled out that the children were acting under the influence of said parent. In the said case, the honourable Supreme Court refused to go by the statement of the children and instead directed the parties to come up with viable formula . This Court in Mukhtar Ahmad Khan vs. Mst. Aziza Begum (PLD 1975 Lahore 86) was pleased to observe that desire express by minor to live with either of the parents, was not sufficient by itself to control the question of custody . In Mrs. Parveen v. Kh. Muhammad Ashar (PLD 1975 Lahore 334), it was observed that estrangements betwe en parents and children should be avoided at all costs and mere allegation by husband that woman was of immoral character was not sufficient to refuse custody to the mother .
6. The above case law is regarding final custody of the minor where it is held that the statement of minor may not be treated as conclusive rule to determine custody . However , in the present case, only visitation rights of the mother are involved which are distinct in nature from custody , therefore, the statement of minor will have very low probative value in relation to visitation rights of the mother , especially where interim custody is already given to the father . This Court in Mrs. Shaukat Khalid vs. Additional District Judge, Rawalpindi and 2 others (1989 CLC 1377 ) held that the preference of the minor is not binding on the Court and it is the duty of the Court while exercising its parental jurisdiction to adjudge the welfare of the minor . The relevant observations are as under:- "It may be mentioned that although preference of the minor may, in such cases, be taken into consideration but it is not always relevant because the minor is not the best Judge as to where his (or her) welfare lies. We have noticed generally that a child is apt to prefer to continue living with the parents or relative with whom he/she has been allowed to live for some time as such person is in a position, be it the father or the mother , to brainwash the child against the other claimant to the child' s custody"
7. The learned Court in case of Shaukat Kahlid supra further held that:- "The preference expert doubt, relevant, but not final or binding on the Courts. It has to be judged with reference to the welfare of the minor . The minor being under the direct influence of the petition er and apparently tutored rather brainwashed by her, has levelled wild allegations against her own parents and even stated that she would die rather than go to her parents. Immature as she is she cannot visualize the hazards of life and exercise sound discretion qua her welfare. It is the duty of the Court while exercising its parental jurisdiction, to judge the welfare of the minor in the context of the facts and circumstances of each case"
Same view was also expressed by learned Sindh High Court in Saad Amanullah Khan vs. IVth Senior Civil Judge, (South), Karachi and 3 others (PLD 2008 Karachi 499).
8. There is no substitute to a real mother . It is well-known Hadith reported in Ibne Majja, one of the celebrated Books of Hadith, that Moawiya bin Maida (God be pleased with him) asked the Holy Prophet (Peace be upon him) that with whom he should do good. The Holy Prophet (Peace be upon him) answered, "Be kind to your mother .".
The question was repeated and the answer was "To your mother ." For the third time the same question was put and the Holy Prophet (Peace be upon him) said "Do good to your mother ." When the forth time this question was repeated, the Holy Prophet (Peace be upon him) replied, "To your father and afterwards to your other relatives."
This shows the degree of preference accorded to the mother over the father and others.
9. In view of above discussion, to deprive the mother from meeting to minors would not only be extremely harsh and cruel but will also be against the welfare and interest of minors who will further be influenced and brain washed against their mother and will never be able to develop any bonding with her .
10. In the circumstances, learned Appella te Court has lawfully and justly applied its judicial mind in modifying the schedule of visitation and allowed meeting of minors with respondent (mother). Accordingly , for what has been discussed above, this petition being merit-less is dismissed .