Find a Lawyer

Civil Petition for Special Leave to Appeal No. 1170 of 1983, decided on 12th October, 1983.

(Against the order of the Lahore High Court, dated 2‑7‑1983, passed in Civil Revision No. 1120/83),

‑‑‑Art.185 (3)‑‑Guardians and Wards Act (VIII of 1890), S.18‑‑Presump tion that welfare of minor boys (less than 7. years) lies in living with their mother‑‑Courts below found justified in allowing custody of such minors to remain with their mother till they attain age of 7 years‑‑Leave to appeal refused‑‑Father, however, directed to be allowed to see his minor sons on any two Fridays.

Birjees Nagy, Advocate Supreme Court with Iqbal Ahmad Qureshi, Advocate‑on‑Record for Petitioner.

Zakiuddin Pal, Advocate Supreme Court with Kh. Mushtaq Ahmad, Advocate‑on‑Record for Respondent.

Date of hearing: 12th October, 1983.

This petition is directed against the judgment of the Lahore High Court, Lahore, dated 2‑7‑1983, in a guardianship matter.

2. The facts giving rise to the petition are that Muhammad Saeed petitioner, an engineer by profession, was married to Mst. Samina Latif in 1976. Two sons were born out of their wedlock namely, Umar Saeed and Usman/Bilal Saeed, who are now aged about 6 years and 5 years, respectively. They could not, however, get on and their relations became strained. Mst. Samina divorced the petitioner (her husband) in exercise of the powers of divorce delegated to her by the husband at the time of her nikah. Muhammad Saeed (petitioner) filed an application before the Guardian Judge for the custody of his two minor sons. The application was dismissed but the learned Guardian Judge, allowed him to meet his sons once a month from 10 a.m. to 12 noon at the premises of a common family friend, namely Kh. Muhammad Ashraf, a retired District and Sessions Judge. Feeling aggrieved the petitioner filed an appeal which was dismissed by the learned Additional District Judge, Lahore on 12‑4‑1983. The petitioner then moved the High Court through a revision petition which, too, met the same fate

Feeling aggrieved the petitioner applied for leave to appeal before this Court

3. We issued notice to the respondent requiring her to be present in Court alongwith the two minor sons, on the date of hearing.

4. We have heard the learned counsel for the parties at considerable length. There is a presumption that the welfare of the minor boys (who are less than 7 years of age) lies with their mother till they attain the age of 7 years. The learned Courts, below are justified in allowing their custody to remain with their mother. But we feel the portion of the order relating to the opportunity given to the father (i.e. the petitioner before us) to meet his two sons, requires some modification. The permission to meet his sons for only two hours once a month is grossly inadequate and is likely to result in the estrangement of the children from their father. Therefore, with the consent of the parties who are present in Court, we direct that Muhammad Saeed petitioner, who is employed at Sargodha. shall be allowed to meet his two minor sons twice a month. The petitioner submitted that being a Government Servant he is sometime on duty even on Fridays. It is, therefore, directed that he shall be allowed to see his two sons on any two Fridays of his choice at the premises of the common family friend, Kh. Muhammad Ashraf. Muhammad Saeed petitioner shall intimate Kh. Muhammad Ashraf of his desire to meet the children on any particular Fridays at least one day in advance. The minors will then be brought by the mother to the latter's house and be allowed to remain with their father from 10 a.m. to 9 p.m., so that they can have their lunch and dinner with him. The father/ petitioner is allowed to take his sons for outings within the City of Lahore. The respondent expressed her apprehension that the petitioner may not take them to Sargodha, But the petitioner has given is a solemn assurance that he shall never do so. He appears to be a gentleman and we think that he shall stick to his promise.

The petition is disposed of with the above modification.

S. Q. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.