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Civil Appeal No. 29‑K of 1983, decided on 12th September,1985.

(On appeal from judgment of High Court of Sind, dated 10‑10‑1982 in C . A . No. 29 of 1981)

‑‑Art. 185(3)‑‑Guardians and Wards Act (VIII of 1890), Ss. 12 & 25‑‑Custody‑‑Leave to appeal granted to examine contention that Courts below by allowing mother to retain custody of male child over seven years had totally misconstrued provisions of law relating to Hizanat.

‑‑‑Ss. 12 & 25‑‑Custody‑‑On suggestion of Court that parties to litigation should give a viable formula regarding custody of minor children which was conducive to their welfare in all circumstances of case, parties submitting a compromised statement and requesting that arrangements made in terms thereof be ordered by way of interim measure for a period of six months so that conducive relations could be developed between concerned parties for evolving a suitable final arrangement for custody of minor children‑‑Supreme Court being satisfied with request 'of parties passing an interim order in terms of compromised statement.

Maroof Ali Khan, Advocate‑on‑Record for Appellant.

Rehan‑ul‑Hassan, Advocate Supreme Court and S.M. Abbas, Advocate‑on‑Record for Respondents.

Date of hearing: 12th September, 1985.

‑This appeal involves the controversy between the father and mother of two minor children born out of their wedlock, for their custody. It is not necessary to mention in detail all the particulars of the litigation over this controversy, but since we are called) upon to pass an interim order and postpone the final disposal of the appeal, it seems necessary to refer to the salient features of the background that led the parties to invoke legal remedies in regard to the custody of the children.

2. It seems the appellant (father) and respondent No. 1 (mother) were married at Quetta in the year 1967. They were blessed with two children, namely, a daughter Nighat Saba and a son Rehan Mustafa. The former was born in July, 1968 and the latter in July, 1970. It appears that in the year 1972, the relationship between the two spouses became strained, which resulted in appellant filing a suit for restitution of conjugal rights and for the custody of the children, while respondent No. 1 filed a suit for maintenance. These suits seem to have been filed in the civil Court at Quetta. It also appears from the record that respondent No. 1 filed an application for her appointment as guardian for the minor children at Karachi. As the various proceedings touching the questions of guardianship and custody of the minor children were pending at two different places, the present appellant moved the then High Court of Sind and Baluchistan at Karachi, under section 14 of the Guardian and Wards Act to decide the venue of the suits and proceedings.

3. At this stage an important development took place in that the parties entered into a compromise on 6th May, 1976, and prayed the High Court to dispose of the Dispute between them in terms of the compromise arrived at between them. This application was allowed by a learned Single Judge of the High Court vide his order, dated 6th May, 1976. The salient features of the compromise, that need to be mentioned are that Syed Maqsood Ali appellant shall voluntarily divorce his wife Mst. Soofia Naushaba; that the minor children will remain with their mother at Karachi, but the appellant shall pay their maintenance; that the appellant shall also pay Rs.250 per month towards the prompt dower amounting to Rs.10,000 and that, in return, the custody of the minor son Rehan Mustafa shall be given to him (i.e. the appellant) on his attaining the age of 7 years. But it was stipulated that in case of default in the payment of the dower instalment the custody of the minor son shall revert to the respondent; that in regard to the custody of the minor daughter (Nighat Saba) it was agreed upon that the same will remain with the mother till she attains the age of puberty, where after her custody will be transferred to the father; that it was also agreed that in the meanwhile i.e. till the minor children reach the above mentioned ages they shall be sent once a year, during the summer vacations, to their father at Quetta, who will also be entitled to see them at Karachi at any time.

4. Fulfilling his part of the agreement Maqsood Ali gave Talaq to his wife and also started sending the monthly expenses for the minors as well as instalments towards the payment of the prompt dower in which he has, admittedly, never committed any default. But, Mst. Soofia Naushaba respondent, who had bargained away the custody of the two minors (on their attaining the age of 7 and 14 years) in return of obtaining divorce and money from the appellant, refused to fulfil her part of the agreement when the time came for her to do so i.e. when the minor boy reached the age of 7 years. The appellant/ father was, therefore, compelled to file a fresh application.

5. The present appeal has arisen out of a fresh application under Section 12 read with section 25 of the Guardian and Wards Act by the appellant in the Court of VIIth Additional District Judge, Karachi. The case seems to have been forwarded to the Court of IIIrd Family Judge, who after hearing the evidence of the parties, ordered that the custody of the male child shall be handed over to the father and that of the female child to continue to remain with the mother. However, on appeal, the learned Additional District Judge took the contrary view even regarding the male child and modified the order, directing both children to remain with the mother. After having unsuccessfully challenged these orders in constitutional petition before the Sind High Court, the appellant filed a petition before this Court which was allowed, hence this appeal. Leave was granted to examine the contention of the appellant that the Courts below had totally misconstrued the provisions of law relating to Hizanat in the case of male minor of the age over seven years, whose custody belongs to the father being the natural guardian unless he is disqualified, which is not the case here. When the appeal was taken up by us we were particularly disturbed by the grievance of the father that he had been refused access to his children, although according to the terms of the compromise voluntarily entered into by respondent No. 1, she had disclaimed any right to custody of the minor children after the expiry of Hizanat in each case.

6. The appellant Syed Maqsood Ali is an employee in the Railways at Quetta. We were quite impressed by his unequivocal assertion that in order to facilitate the continuance of the studies of the minor children at Karachi, he was, prepared to proceed on voluntary retirement from service and establish a home at Karachi. The mother, on the other hand, mainly emphasised that it will not be in the interest of the minor children to discontinue their study at Karachi and be shifted to Quetta. She also laid emphasis on determining the wishes of the children in the matter. However, we were tentatively of the opinion that, in the course of long period of litigation between their parents, the children having remained with the mother, may have been subjected to influences tending to regard their father in an unfavourable light and in any case must have formed strong association with their mother to the entire exclusion of the father. We, therefore, thought that the matter cannot be left entirely to the choice of the minor children in the circumstances of this case. We, therefore, suggested to the parties, to give us a viable formula regarding the custody of the minor children which is conducive to their welfare in all the circumstances of this case.

7. With the assistance of their learned counsel, the parties have today submitted a compromise statement, and requested that the arrangement made in terms thereof may be ordered by way of interim measure for a period of six months, so that conducive relations may be developed between all concerned parties in this unfortunate controversy, for evolving a suitable final arrangement for the custody of the minor children. We are satisfied with this request and, therefore, pass an interim order in terms of the compromise statement submitted today. This arrangement will continue until the next hearing of the case which shall be fixed by the office on a date in April, 1986.

N . Y . H . Order accordingly.

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