Ameer Mai vs Additional District Judge Ss — 2024 MLD 1433 LAHORE-HIGH-COURT-LAHORE

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Ameer Mai VS Additional District Judge Ss. 7 & 25---Custody of minor girl---Minor girl less than three years of age residing with her maternal grandmother since her birth---Father's right of custody---Scope---Grandparent(s), entitlement of---Welfare of minor---Emotional attachment of minor---Guardian Court allowed the father's application for custody of minor and appeal filed there against by the maternal grandmother was dismissed---Contention of the petitioner/grandmother was that father/ respondent was serving in the Army and did not live in his native village thus, he was unable to devote time for proper upbringing of the minor ---Plea of the father /respondent was that minor-girl would be better brought up in the company of her brother , who was already in respondent's custody, and , in order to properly bring up his children, he had applied for early retirement and his son , living with his (paternal ) grandparents was already enrolled in a school in the city--- Validity --- Welfare of the minor is the primary consideration governing the grant of custody of minors--- In the absence of his disqualification, a father cannot be deprived of custody of the minor as ordinarily welfare of the minor lays with his or her parents ---In exceptional cases and for valid reasons, a parent can be denied the right of custody and same can be entrusted to the grandparents, when it is absolutely necessary and in the welfare of the minor to do so--- In the present case, undisputedly the minor had been residing with her maternal grandmother since her birth and was of tender age of about 2½ years--- Undeniably, no emotional bond had developed between the minor and her father and paternal relatives therefore, abrupt withdrawal of her custody from her maternal grandparents might be very traumatic for the minor--- Additionally, documents qua early retirement of respondent/father and admission of brother of the minor-girl in a Public School (Gujranwala Cantt) did not form part of the evidence as those came into existence after decision of the Guardian Court---Therefore, to allow fair opportunity to either side, it was appropriate to remand the matter to the Trial Court/ Guardian Judge concerned for determination of custody / welfare of minor after permitting the parties to lead additional evidence as well as allowing respondent/father his visitation rights vis-à-vis the minor twice every month on the weekends for two hours each time so that the bond of love and affection between the minor and her father was allowed to be developed ---For that purpose, schedule of visitation shall be set down on an application to be moved by respondent/father and Guardian Judge shall ensure that visitation right is allowed to be exercised by the respondent /father without any hindrance or intimidation whatsoever---High Court set-aside the impugned judgments and directed that the application of respondent /father shall be deemed to be pending before the Guardian Judge who shall decide the same afresh within a period of three months---Constitutional petition , filed by the maternal grandmother of minor-girl, was disposed of accordingly.

Ameer Mai vs Additional District Judge Ss — 2024 MLD 1433 LAHORE-HIGH-COURT-LAHORE

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