MUHAMMAD RAFIQ vs Mst. SHAHZADI and others
This matter concerns a petition for leave to appeal against a judgment of the High Court of Sindh, which upheld the concurrent findings of lower courts regarding the custody of two minor sons. The core legal question was whether the father, who had long-standing custody of the elder son, was entitled to retain that custody, or whether the welfare of the minors necessitated a different arrangement. The Supreme Court examined the findings of the Guardian and Ward Judge and the High Court, which had scrutinized the educational and personal circumstances of the children. The Court held that the welfare of the minors is the paramount consideration. It affirmed the lower courts' decision to place the children with the mother, noting that the elder son’s educational progress was suboptimal under the father's care compared to the younger son's progress under the mother's care. Furthermore, the Court emphasized the importance of siblings living together and the potential negative impact of a step-mother on the children's upbringing. The petition was dismissed, though the Court modified the visitation rights to allow the father access on weekends.
- Does the welfare of the minor principle require siblings to be kept together in the custody of one parent?
- Can a court modify visitation arrangements in a child custody dispute even when dismissing an appeal against the custody order?
- Is the presence of a step-mother a material factor for consideration in determining the custody of minor children?
ORDER
1. ' GHULAM RABBANI, J.---Leave to appeal is sought against the judgment dated 7-5-2009 passed by a learned Single Judge of the High Court of Sindh whereby the Constitutional Petition filed by the petitioner was dismissed and the order of the two courts were maintained.
2. ' We have heard the learned counsel for the petitioner. According to him the long association with the minor boy entitled to his father to continue holding his custody. We have given due attention to the above oral submissions of petitioner and we have also seen the documents made available to us. Admittedly, the findings going recorded by the three Courts are against the petitioner. Reading of the impugnqd judgment reflects that learned Single Judge of the High Court has evaluated the case of the petitioner with great care. The High Court observed that the Guardian and Ward Judge examined the pros and cons of the case minutely and accounted for each and every factual position brought on the record. Further that the respective evidence brought on record by the parties was scrutinized and assessed and the judgment was found to be reasonable. Appellate Court maintained the judgment and learned Single Judge while dismissing the petition of the petitioner has observed as follows:-- "In the instant case, it has been noticed that younger son Shahwaiz is although 9 years of age but is in class V while elder son Hasan Raza, who is 12 years of age and has remained with the petitioner is in class VI instead of class VIII according to the age as well as the age difference with his younger brother Shahwaiz. It has also come on record that elder son was going to Urdu medium school instead of English medium like the son in possession of the respondent. The aspect of second marriage and step-mother and brothers is also a material fact for consideration normally it is not expected that a child will receive same love and affection from step-mother which he can have from his real mother. Moreover, two real brothers who have to pass a long life have right and entitlement to live together to understand each other as well as help and assist each other in case of need in their young age and afterwards. In such a situation, the findings of the trial Court and arrangement as quoted above are apparently fit and proper with the clarification that since no meeting on the weekdays has been arranged in the judgment by the Guardian and Wards Court therefore, it is added in this arrangement that the petitioner/father may take the custody of both the sons on Saturday after Maghrib prayers and hand over them back to the respondent on Sunday before Maghrib prayers while other arrangement provided by Guardian and Wards Court will remain intact.
3. ' Considering the above facts and circumstances, we do not find any illegality or infirmity in the judgment. The petition being without merit is dismissed. .