' The petitioner and the respondent No, 1 were married on 21-11-1986 and a daughter was born as a result of the wedlock on 12-10-1991. Sometime thereafter unfortunately relations between the spouses became srained leading to separation and ultimate dissolution of marriage. On 12-11-1999, the petitioner, filed an application for custody of the said daughter. In the petition it was alleged that respondent No,1 is not allowing him to meet his child and is creating hatred in her mind against him. The only allegation raised qua the welfare of the minor was that since respondent No,1 is a working lady she cannot effectively look after the child. In reply respondent No,1 complained that for reasons attributable to the petitioner she and the child are living apart since long and she had filed a suit for dissolution of marriage. Same allegations were made qua mental acumen of the petitioner. Answering the said allegation in the petition the lady stated that she is working as teacher and she has got the child admitted in a school where she is studying and that the child is being brought up in best environment. Issues were framed. The evidence of the parties was recorded. Learned Judge Family Court vide order, dated 12-4-2000 dismissed the application and at the same time issued directions for visitation of the child with her father. These are:-- ' That the petitioner will have a right to meet the minor at the house of the respondent as and when he so desires;
(ii) he will be entitled to get the minor on first Saturday of every month, bring her to his house and to return the child to the respondent in the evening of Sunday;
(iii) during the long summer vacations the minor to stay with the respondent for 15 days to be returned to the mother after the expiry of the said period; and
(iv) on every Eid the minor to remain with the respondent for a day and a night.
' Apart from making said. Directions the learned Judge Family Court further directed that if the petitioner wants to have the custody of the child on some other occasions or festival he can seek permission of the Court for taking the custody.
2. The respondent did not but the petitioner did file appeal against the said order of the learned Judge Family Court. Alongwith this appeal an application was filed for production of additional evidence. The appeal was heard by the learned District Judge, Jhelum who dismissed the same on 28-2-2001.
3. Relying on Pak Carpet Industries Ltd. v. Government of Sindh and 2 others (1993 CLC 334) and Hassan Arbab Khan v. Principal, Government College, Lahore and others (1996 CLC 1731) the learned counsel argues that the order passed in appeal is liable to be set aside on the short ground that the District Judge has not attended to the said application for additional evidence.
Further relying on Hashmat Ali v. Abdul Hamid and 2 others (1989 CLC 2084), learned counsel argues that the respondent No,1 is creating hatred in the mind of the minor and as such the petitioner would be entitled to the grant of custody of the minor.
4. I have gone through the copies of the records appended with this writ petition with the assistance of the learned counsel. I have already referred to the material contents of the pleadings of the parties above. The learned respondents Nos.2 and 3 have concurred that the welfare of the minor lies in her custody with the respondent No,
1. In my turn I have examined the evidence and I do not find anything adverse to the minor in her remaining in custody of respondent No,l. There is not even a specific allegation and of course there is no evidence that the minor is not being properly brought up by the respondent No,1 who is an educated lady and is employed as Teacher. I do not find anything wrong with the findings recorded by the lower forums which have been made in the light of evidence available on record.
5. Both the said judgments being relied upon by the learned counsel were given in appeals arising out of suits to be dealt with under Order 41, C.P.C. The provisions covering the appeals against a decision or a decree of Family Court are provided in section 14 of the Family Courts Act, 1964. I do not find a right as such being conferred upon an appellant or for that matter other party to an appeal to make a prayer for additional evidence and its consideration by a Court of Appeal.
Learned counsel has not cited any judgment vis-a-vis provisions of appeal contained in Family Courts Act, 1964. I have also not been able to find any judgment on the said questions arising under the said Act. However, I have been able to dig out a judgment of this Court pertaining to provisions of Urban Rent Restriction Ordinance, 1959 vis-a-vis Order 41, Rule 27, C.P.C. This judgment was rendered in the case titled "Mst. Umari and another v. Faqir Muhammad and another" (PLD 1983 Lahore 349). It may be noted here that the relevant provisions i,e, section 15 of the said Ordinance, 1959, in fact provides for conduct of further inquiry by the Court of Appeal. Two provisions i,e, Order 41, Rule 27, C.P.C., and section 15(6) of the said Ordinance, 1959 were compared by his Lordship. It was laid down that whereas Order 41, Rule 27, C.P.C. Provides not only for need of the Appellate Court but also need of the party. Said section 15(6) of Ordinance; 1959 relates to an Appellate Authority alone and not to a party. Ultimate conclusion was that whereas it would be incumbent upon a District Judge hearing an appeal under Code of Civil Procedure to decide an application filed by a party praying for permission to lead additional evidence, the Appellate Authority under the said Ordinance would not be so bound. These observations were made by his Lordship while distinguishing the judgment of this Court in the case of Muhammad Qasim v. Additional District Judge, Lahore and 3 others (PLD 1982 Lah. 14). In this later judgment it was held that the litigant before an Appellate Authority under section 15 of the said Ordinance, 1959 would not be vested with a right to file such an application and consequently failure to pass an order on such application would not amount to failure to exercise jurisdiction vesting in the Court of Appeal and further that failure to pass an order on such an application would not constitute contravention of any provision of law.
6. I find myself in agreement with the observations made by their Lordships in the said two judgments. In the present case section 14 is absolutely silent (unlike provisions of Order 41, Rule 27, C.P.C., pertaining to a civil appeal under section 15(6) of Urban Rent Restriction Ordinance, 1959 pertaining to a rent appeal), qua a matter of further inquiry or additional evidence. The said silence of law would not be taken to mean absence of any authority in the Court of Appeal hearing the matters under Family Courts Act, 1964 to admit the additional evidence but at the same time the said mandatory provision qua application under Order 41, Rule 27 cannot be imported into section 14 of the said Family Courts Act, 1964 vis-a-vis an application filed by a party to the appeal to lead additional evidence. On the analogy of the said judgments, to my mind it can be safely inferred that in the matter of appeals being heard under section 14 of Family Courts Act, 1964 the Appellate Authority, if feeling need for additional evidence, can pass an appropriate order but it would not be a right vesting in the parties to the appeal to make an application or to demand an order being passed on the same. The said first contention of the learned counsel is accordingly without any force and is rejected.
7. So far as second contention of the learned counsel is concerned, it is this contention which is being sought to be supported by the said additional evidence. In this regard on the evidence available on the file nothing turns on the same in support of the said proposition. Without prejudice to the observations made above, regarding the legality of the said first contention of the learned counsel I had with his assistance examined the said documents which were sought to be produced by way of additional evidence. These are copies of the proceedings in execution of the visitation order passed by the learned Judge Family Court while dismissing the application of the petitioner and a statement of the respondent-lady made in the course of another suit filed by her for dissolution of marriage and maintenance. Now so far as execution proceedings are concerned, a complaint was made that the respondent-lady is not allowing the petitioner to meet the child as per terms of visitation. The Executing Court proceeded to issue warrant for the arrest of the child and for her production in Court on 24-10-2000. On the said date the lady appeared and stated before the Court that she will comply with the order of the Court and she will hand over the child to the petitioner. The child was handed over to the petitioner on 4-11-2000 with a direction to return her to the mother the next day before the sun sets. On 6-11-2000 the petitioner was absent despite several calls and the matter was consigned with observation that he seems to be no longer interested. To my mind nothing turns on these proceedings. On the other hand these proceedings negate the plea that the petitioner had raised and further that will of the respondent No,1 notwithstanding the order passed by the Court of competent jurisdiction was enforced. I may also state here that there is no complaint in the writ petition or at the bar that the respondent-lady is not complying with the said visitation order.
8. Coming to the other pieces of additional evidence, the learned counsel states that the lady had the check to state in the witness-box that her daughter hates her father and that she is not prepared to send her to his house and will not be willing to obey the order of the Court in this behalf. Now this may be wish of the lady but is immaterial. What matters is that the Courts below have seen to it that whereas it would not be in the welfare of the minor, for reasons recorded by them, to be delivered unto the petitioner permanently, the petitioner and for that matter his child has a right to see each other and adequate arrangement had been made for the same and learned Judge Family Court has seen to it that his order is obeyed. Thus even if the said documents were to be considered the same would not be having any effect on the merits of the judgment passed by the learned lower forums.
9. This writ petition is accordingly dismissed in limine.