' Appellant Mst. Husan Ara was married to Respondent Dr. Muhammad All in November 1977 and the couple have two daughters, Baby Kiran who was born in December 1980 and Baby Shabnam who was born in February 1984 in England where the couple had by then moved but by the end of the same year the family permanently returned to Karachi. According to the Appellant, the Respondent is of violent temper and treated her cruelly and as a result since June 1987 she is residing with her parents. The details of the alleged cruel treatment being irrelevant for purposes of this Appeal, not given here . The parties belong to Aghakhani community and the dispute had gone to the Jamaat and according to its decision the Appellant was given the custody of the minors but the respondent was permitted to have their custody on Fridays. However the Appellant thought it desirable to obtain an appropriate order from the Court as regards the custody of the minors and she moved an application under section 7 of Guardians and Wards Act before the District Judge, Karachi in August 1988. Her contention is that the Respondent has a violent temper and the children, being minor daughters, cannot possibly live with him and, in any case, she is entitled to their custody under the Muslim Law till they attain majority. She further stated that the Respondent was living alone in the house and, being a doctor, had no fixed working hours and the minor daughters could not live with him under these circumstances. In his written statement the Respondent controverted all the allegations, stating that his mother was living with him and he was not living all alone in his house and that he had fixed working houRs, In support of her claim the appellant examined herself as well as the two . Minors who both stated that the Respondent, when they were with him on Friday visits, spoke ill of their mother and maternal-relatives and they did not like to be with him even on Fridays not to speak of living in his permanent custody. It is significant that after filing the written statement the Respondent did not pursue his defence and remained absent on the subsequent dates of hearing and as a result the evidence of the Appellant went unrebutted and she and the minors were not cross-examined by the Respondent nor he produced any evidence in defence and did not even examine himself. However, after the evidence was thus closed and before the announcement of the judgment the Respondent filed in the Court a proposal on 21-5-1991 (learned Family Judge while entertaining it and ordering to issue its notice to the other side, wrongly dated his signatures as 21-4-1991) entitled "points for consideration in the larger interest and welfare of the minors". It is not clear under what provision of law they were filed at the stage of announcement of judgment and under what provision of law they were entertained by learned Judge. Even so, the proposal was entertained by the Court and the Appellant filed objections to it. Clause 1 of these proposals stipulated that: "The minors, namely Baby Shabnam and Baby Kiran would be with the Respondent from every Thursday evening till the morning of the following Saturday."
2. Afterwards, the parties were heard, both on these proposals as well as on the main petition under section 7 of Guardians and Wards Act, but learned Vlth Additional District Judge seems to have been totally confused thereafter as para. 8 of the judgment, which contains its operative part, says nothing specifically as to the fate of the Application under section 7 of the Guardians and Wards Act and merely revolves round the proposal submitted by the Respondent and actually decides those proposals. However, from the confused phraseology of para. 8 of the judgment it can be deduced that the Application under section 5 filed by the petitioner was granted and she was given the custody of the minors till they attained the age of puberty but learned Guardian Judge also directed that the minors should remain in the custody of the Respondent from Thursday evening to Saturday morning as per clause 1 of the proposal submitted by the Respondent. It is against this last part of the impugned judgment that the Appellant feels aggrieved and has come in Appeal.
3. Learned counsel of the appellant has been heard. Although the counsel of the Respondent was also present but the Respondent preferred to himself address the Court in his defence and he was also heard.
4. I am of the view that under the circumstances of the case as made out by the evidence on record, it is not in the interest of minors to remain overnights with their father when he is living all alone in his apartment. Minors, specially the girls, have their own peculiar requirements which can only be adequately met by a female member of the family and a father, howsoever, devout he may be towards the minors cannot fulfil the gap of the absence of a female member of the family.
It may be noted that the Appellant had pleaded that the Respondent was living all alone in his apartment and although the Respondent denied this in his written statement wherein he claimed that his mother was also living with him but the averments of the Appellant, on this point, in her deposition have gone unreported since neither she was cross-examined nor the Respondent led any evidence to prove his claim that his mother was living with him and as such learned Guardian Judge rightly decided the point in favour of the Appellant and this finding has become final since the respondent did not prefer appeal against the judgment of the Guardian Judge. Now the respondent again raised the plea that his mother was living with him and therefore overnight stay of the minors would pose no inconvenience to the minors but in view of the finding of learned Guardian Judge, the Respondent cannot be suffered to raise this plea before this Court which shall proceed on the assumption that the Respondent is living alone in his apartment. The Respondent is a foreign-qualified medical doctor and it is quite natural for him to be occasionally delayed in the hospital or to be called up at odd hours of the night. What would happen to the minor girls then?
They would obviously be left unattended at house. Living alone with the father was by itself not conducive to their wellbeing, as noted above, and their living all alone is many times more undesirable. The reasoning of learned Guardian Judge is that during the pendency of the case the minors were visiting the Respondent regularly on each Friday and there was no untoward incident and therefore they should be allowed to stay for two consecutive nights with the Respondent. This reasoning is bereft of any logic.
5. There is yet another reason why the impugned portion of the judgment should be set aside. It is usually at night that the children do their home work and get ready for the next day at School and if the minors spend two consecutive nights with the respondent (from Friday evening to Saturday morning) their studies would undoubtedly suffer. The Respondent cannot be expected to be of any help in this task. Besides, it is the nature of the children that they can be satisfactorily tutored by one person and it would be beyond the capabilities of the minors to adjust to the situation in which they are coached four days by the mother and two days by father even if it were to be conceded that the father can coach them satisfactorily.
6. I would therefore accept this appeal and modify the judgment of learned District Judge in so far as it relates to the overnight stays of the minors with the respondent and would direct that the minors may remain with the Respondent on Fridays from 10 a.m. To 8 p.m. They may also remain with the Respondent on the occasion of the two Ids from 12 mid-day to 8. p.m. It is further directed that the appellant should deliver the minors at the house of the Respondent and the Respondent shall deliver them back at the house of the appellant.
' There is no order as to costs.