SHAM SUDDIN ABBASI, J. Respondent No.1 (father) Shoaib Ismail filed Guardian and Wards Application No.2944 of 2022 under Section 25 of the Guardian and Wards Act, 1890 seeking custody of minor Mustafa Shoaib and prayed for following relief(s):- "(i) To declare that the character of the Respondent and her family is harmful and unsuitable for the welfare of the minor/ward and she is unfit for the minor's custody.
(ii) To declare that due to Respondent's unlawful act of commission of perjury before the Honorable Court the Respondent has lost he right of Hizanat as well as visitation rights.
(iii) To handover the custody of the minor/ward namely Mustafa Shoaib to the Applicant who is his real father and natural guardian for his better mental development and well-being.
(iv) Any additional or better relief(s) which this Hon'ble Court may deem fit and proper under the circumstances of the case".
2. Notices were issued to the petitioner (respondent No. 1) Mst. Sana and in response Mr. Waqal Ali, Advocate, appeared and filed his Vakalatnama on her behalf and thereafter chosen to remain absent, hence she was debarred from filing of written statement and the matter was ordered to be proceeded ex pane. The learned Civil/Family and Guardian Judge-XXIX, Karachi (East) after hearing the learned counsel for the respondent No.1 (applicant) dismissed the G and W Application vide order dated 04.05.2023, but allowed visitation rights per schedule as follows:-
(a) The Applicant father is entitled to take interim custody of minor Mustafa Shoaib on every alternate Saturday from 03:00 PM to 06:00 PM.
(b) On birthday of minor as well as of applicant, Applicant Father would be entitled to celebrate birthday with the minor for four to six hours.
(c) On the occasions of Eid ul Fitar and Eid ul Azha, the Applicant/Father will be entitled to meet with his child/son on second day of both Eid ul Fitar and Ed ul Azha 12:00 PM to 5:00 PM.
(d) In case there is family occasion i.e. Marriage or deaths of the blood relatives in which the Applicant/Father desires and wishes that minor may also attend shall inform the Respondent Mother who shall not unreasonably stop the minor Mustafa Shoaib from attending such family events or functions
(e) None of the parties will be allowed to take the minor abroad. Similarly, none of the party could permanently shift the minor beyond the territorial jurisdiction of this court but with permission of the Court.
9. At present minor is 2 1/2 years old hence and after attending the age of five years or in case of any disagreement on meeting schedule the parties may, however, seek modification of meeting arrangement to cater for their mutual convenience, could be varied at any subsequent stage subject to the consent of both the parties as well as of the minor. The Applicant will enjoy the meeting schedule subject to payment of conveyance charges of Rs. 1000/- for each meeting to bailiff of the court as a commissioner".
3. The petitioner (mother) filed an application seeking change of Commissioner (bailiff) and after observing the attitude of the parties creating unnecessary mess and leveling multiple allegations against each other and to avoid any untoward incident in future, the learned Family Judge vide order dated 15.07.2023 modify previous order only to the extent of meeting of minor through SHO of P.S. Bahadurabad instead of bailiff. The Respondent No.1 (father) also filed application Seeking issuance of Red Warrant through FIA for production of minor in Court. The learned Family Judge by an order dated 22.01.2024, impugned herein, allowed the application and directed as follows:- "3. In response to this development, a report was sought from the Station House Officer (SHO), who revealed that the respondent had shifted the custody of the minor to an unknown location.
Subsequently, the FIR was tasked with investigating the travel history of the respondent and the minor. According to the FIA's report, the respondent Mst. Sana had traveled to the UAE with the minor Mustafa Shoaib on August 19, 2023 departing from Jinnah International Airport, Karachi.
4. The court, recognizing the unauthorized removal of custody to the (UAE without prior permission or intimation, allows the father's application. Consequently, a Yellow Warrant for the respondent and the minor is ordered to be issued to Interpol through FIA. The FIA, specifically through its Director in Islamabad, is directed to promptly initiate procedures and take all necessary measures to locate and ensure the safe return of the minor to the jurisdiction of this Court and submit report on or before the next date hearing.
5. Additionally, in an effort to restrict the respondent's movements, this Court orders letters to be issued to the National Database and Registration Authority (NADRA) as well Immigration and Passport Department, for the blocking of the respondent's CNIC (Computerized National Identity Card) Na42201-3819407-2 and Passport No.KP9994072, respectively, This directive aims to safeguard the best interests of the minor and ensure compliance with legal protocols. The Court emphasizes the paramount objective of protecting the well-being of the minor. Office is directed to communicate this order to the concerned departments for compliance and report. To come up on 10.02.2024.
4, Feeling aggrieved by the order dated 22.01.2024 the petitioner (mother) has filed this petition.
5. It is contended on behalf of the petitioner (mother) that order, impugned herein is illegal, null and void without affording an opportunity of hearing to the petitioner (mother); that the respondent No.1 (father) has filed application for issuance of red warrant just to save his skin as he has not deposited the amount of maintenance of minor in Court; that the minor is getting education in UAE and the petitioner (mother) applied for leave which was declined by the school administration, otherwise she is law abiding citizen and never created hurdles in meeting of the minor with the respondent No.1 (father); that the learned Family Judge is biased against the petitioner (mother), therefore, the petitioner (mother) has made a complaint against Family Judge to MIT-II of this Court and prayed for cancellation of yellow warrant and setting aside the impugned order.
6. The learned counsel for the respondent No.1 (father), on the other hand, filed counter affidavit along with certain documents. and mainly argued that the learned Family Judge in its order dated 04.05.2023 specifically noted that none of the parties will take custody of the minor abroad and he (minor) would not be permanently shifted beyond the territorial jurisdiction of the Family Court without permission; that the petitioner (mother) has violated the terms and conditions of the final order and took custody of minor abroad without first approaching the learned Family Court for obtaining permission; that the learned Family Court has rightly taken the coercive action just to implement its order in letter and spirit; that the petitioner (mother) has not assailed the final order dated 04.05.2023 before any forum, which has attained finality; that the impugned order is just and in accordance with law, hence calls for no interference.
7. The learned AAG has supported the arguments advanced by the learned counsel for the respondent No.1 (father) and submitted that the petitioner has failed to point out any illegality or material infirmity in the impugned order calling for any interference.
8. Heard and record perused minutely.
9. The petitioner (mother) is Ex-wife of the respondent No.1 (father). Record demonstrates that the parties have initiated multiple litigations levelling certain allegations against each other. Nikah between the petitioner (mother) was solemnized with the respondent No.1 (father) on 27.12.2019 and rukhsati took place on 28.12.2019. Minor Mustafa Shoaib was born on 17.09.2020. Petitioner (mother) filed suit for dissolution of marriage by way of "Khula", recovery of dowry articles and maintenance, which was partly allowed and marriage between the parties was dissolved by way of "Khula" vide order dated 29.04.2022 in Family Suit No. 387 of 2022, passed by the learned Family Judge. Petitioner (mother) approached the Family Court for custody of minor vide Family Suit No. 1799 of 2021 and Family Suit No. 463 of 2022 respectively and by orders dated 10.11.2022 and 19.11.2022 both suits were dismissed for non-prosecution. It is noteworthy that the learned Family Judge while dismissing the G & W Case No.2944 of 2022, filed by respondent No.1 (father) for custody of minor, in clause (e) has specifically restrained the parties from removing the custody of minor abroad as well as his permanent shifting beyond the territorial jurisdiction of the learned Family Court but subject to prior permission of the Court. The record is suggestive of the fact that the petitioner (mother) has removed the custody of the minor Mustafa Shoaib from the territorial jurisdiction of the learned Family Court and took him to UAE without permission of the Court, which is clear violation of the terms and conditions of final order dated 04.05.2023 and taking pain of such breach of terms and conditions of the final order, the learned Family Judge took coercive measures of blocking the CNIC and Passport of the petitioner The impugned order is, thus, proper and in accordance with law.
10. Apart from the above, the order, impugned herein, is an interlocutory order and cannot be entertained by this Court in exercising of its Constitutional Jurisdiction; It is a well settled that Constitutional Jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision. The Hon'ble Apex Court in its various pronouncements has held that jurisdiction of this Court under Article 199 of the Constitution cannot be invoked against an interlocutory order until and unless such, an orders suffers from any illegality or jurisdictional error, thus, the prayer of the petitioner to entertain the petition against an interlocutory order and intervene in the matter would be against the principle laid down by the Hon'ble Apex Court in its various pronouncements.
11. For what has been discussed above, I am of the view that the learned Family Judge has passed the order dated 22.01.2024, impugned herein, after due application of mind keeping in view the facts and circumstance of the case as well as applicable law. Hence, the same does not suffer from any illegality, infirmity or irregularity that may require interference by this Court in exercise of its Constitutional Jurisdiction. This petition is bereft of merit stands dismissed. However, in order to resolve .the controversy and to facilitate the petitioner and also taking into account the welfare and well-being of the minor, whose personality can develop in a healthy environment, the petitioner may approach the learned Family Court for unblocking of her CNIC and Passport as well as of the minor and file application seeking permission to travel from UAE to Pakistan along with the minor for a specific period not more than a month. She can also apply for permission to go abroad (UAE) with minor for his education and Family Court may revise meeting schedule with the consent of the parties.
12. The Constitutional Petition No. S-184 of 2024 stands disposed of in the foregoing terms.