E.M. CORDEIRO (CEDARO) Versus JUZER FAKHRUDDIN
1. This Constitutional petition is directed against the judgment, dated 22‑4‑1989 of the learned Additional District Judge, Okara, whereby he set aside the order, dated 13‑2‑1989 passed by the Judge Family Court, Depalpur and entrusted the custody of the minor Mst. Kashmiran to the respondent.
2. Facts in brief are that the petitioner entered into a marriage contract with respondent Mst. Muniran Bibi. Out of this wedlock Mst. Kashmiran Bibi. was born. The relations between the parties became strained resulting in the divorce. The respondent No.1 moved an application for the custody of the minor on 31st March, 1985 making grievance that three months prior to the filing of the application the petitioner/defendant had taken away the minor through force. This petition was resisted by the petitioner/defendant and the following issues were framed:‑‑‑
3. "(1) Whether it is the interest of the minor if her custody is handed over to the plaintiff? OPR.
(2) Relief."
4. The respondent apart from appearing herself also produced Suleman as P.W.2 while the petitioner appeared as D.W.1 and also produced Muhammad Hassan. Learned Judge Family Court through his order, dated 13‑2‑1989 after scanning the evidence brought by the parties dismissed the application of the respondent No.1. Aggrieved with this order the respondent No.1 filed an appeal and the learned Additional District Judge through the impugned order, dated 22‑4‑1989 set aside the order by accepting appeal. Hence, this Constitutional petition.
5. It is the argument of the learned counsel that the Additional District Judge has not at all considered the welfare of the minor and has extended/granted the custody of the minor to respondent No.1 on flimsy grounds. Learned counsel appearing for the respondent has supported the impugned judgment.
6. I have considered the contentions and have gone through the evidence of the parties. I have noticed that the respondent failed to establish through her testimony that the minor was taken away by force by the petitioner. It has successfully been brought on record that the respondent No.1 herself left the minor with the petitioner with whom she has been living eversince. The petitioner has not contracted second marriage and the minor is being very well‑looked after by him in a house where he is living alongwith other family members. The minor is also attending the school as is reflected from the evidence. It is true that the respondent No.1 has also not contracted the second marriage but she is not living with her parents at her family abode in village Katcha Khuh. She has been working at a Dera of Shakir Shah. Her testimony does not inspire any confidence and the only witness Suleman P.W. produced by her does not advance her case any further. Said Suleman cannot be termed. as an independent witness. Although the respondent No.1 while appearing as P.W.1 had stated that she had got no acquaintance nor had got any relationship with the said witness. However, the testimony of Suleman is completely otherwise. He has been coming to the Court on each date of hearing with the respondent as is reflected from his testimony. Both of them have been working at the peace of Shakir Shah. It has also come on record that the respondent No.1 is not staying with her parents. The learned Additional District Judge did not at all advert to the welfare of the minor which is the paramount consideration while deciding the case of this nature. In case the order under appeal is not interfered the minor would also be placed at the Dera of Shakir Shah where her mother is working. This would certainly jeopardise the welfare of the minor who is presently very well‑looked after by her, father.
7. In view of what has been stated above, I am of the considered view that the learned Additional District Judge has not at all considered the evidence brought by the parties in its true perspective. He has not at all discussed the important feature of the case i.e. the welfare of the minor. Resultantly, the order, dated 22‑4‑1989 passed by the Additional District Judge, Okara, is hereby set aside as having been passed without lawful authority and of no legal effect. The parties are left to bear their own costs.
8. AA./A‑92/L Petition accented.