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Constitutional Petition No.S-157 of 1986, decided on 3rd May, 1987.
---S.17--Constitution of Pakistan (1973), Art.199--Welfare of minor- Concurrent findings of two Courts below that welfare of minor aged 5 years lay with mother, held, could not be interfered with in constitutional petition--High Court while dismissing petition, however, observed that petitioner being father of minor would be entitled to see his child and could approach original Family Court for that purpose.
Muhammad Muzaffarul Haque for Petitioner.
Mrs. Nargis Siraj for Respondent No.1.
This constitutional petition is directed against the judgments dated 31-3-1985 and '15-5-1986 passed by the learned XIVth Senior Civil Judge, Karachi, in G & W Suit No.2256/82 and the learned 1st Additional District Judge, Karachi West in Family Appeal No.150/85 respectively, whereby the custody of the minor son who is now aged about 5 years was allowed to remain with the respondent, the mother. The petitioner had sought the custody of the above minor after the divorce had taken place between the petitioner and respondent No.1. The learned Family Court after recording the evidence found that it would be in the welfare of the minor to allow his custody with the mother. The petitioner being aggrieved by the judgment of XIVth Senior Civil Judge at Karachi filed the aforesaid appeal in the Court of 1st Additional District Judge, Karachi West which was dismissed by the aforesaid judgment dated 15-5-1986. The petitioner being aggrieved by the above two judgments has filed the present constitutional petition.
2. (a) In support of the above petition Mr. Muhammad Muzaffarul Haque, learned counsel for the petitioner has vehemently urged that two Courts below have not taken into consideration the welfare of the minor inasmuch as the petitioner wanted to provide good education to the minor, whereas respondent No.1 is not in a position to provide the same. It was also contended that both the two Courts below have not provided any provision for allowing the petitioner to see the child once a week.
(b) On the other hand, Mrs. Nargis Siraj, learned counsel for the respondent No.1, has submitted that the petitioner has not paid any maintenance for the child and factually child is getting education in a Cambridge School. She has further submitted that respondent has no objection to allow the petitioner to see the child once a week if the Court so orders.
3. There is concurrent finding of the two Courts below on the question of welfare of minor and therefore the same cannot be interfered with in Constitutional petition. Admittedly the age of minor is about 5 years and, therefore, the mother is entitled to the custody as a matter of right under the Muslim Law upto the age of hazanat.
4. I am, therefore, not inclined to admit the above petition but before dismissing the above petition, however, I may observe that the petitioner being the father is entitled to see his child. It will be open to the petitioner to approach the original Family Court through an application for fixing time to allow him to see the child once in a week after taking into consideration the convenience of both the parties and of the minor.
With the above observation, the petition, is dismissed in limine.
H.B.T/M-247/K Order accordingly.
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