P L D 2018 Sindh 377

Before Muhammad Shafi Siddiqui, J

SCHERAZADE JAMALI---Petitioner

Versus

HISHAM GILLANI and others---Respondents

Constitutional Petition No.S-4 of 2017, decided on 27th March, 2018.

(a) Guardians and Wards Act (VIII of 1890)---

----S. 9---Jurisdiction of Guardian Court (Trial Court)---Acquiescence to the jurisdiction of Court---Scope---Plea of

mother that Guardian Court (Trial Court) had no territorial jurisdiction as the ward was not ordinarily residing within the
jurisdiction of the Court; that ward was a foreign national by birth and before coming to Pakistan was permanently and
ordinarily residing in another foreign country, hence, the jurisdiction of Trial Court did not extend over the ward as he
was only in Pakistan for a visit and shall not be subjected to the laws of Pakistan---Validity---When the father
surrendered to the jurisdiction of the Trial Court by moving an application for permanent custody of ward, it was
promptly responded and replied by filing written statement and jurisdiction was conceded by the mother---Perusal of
written statement showed that the mother who was now attempting to challenge the jurisdiction, had actually acquiesced
to the jurisdiction of Trial Court---In the written statement the mother stated that the child was residing in city "K" in
Pakistan, and that she did not forcefully remove the ward---Once the mother had acquiesced to the jurisdiction, she could
not approbate and reprobate at the same time.

(b) Guardians and Wards Act (VIII of 1890)---

----S. 9---Jurisdiction of Guardian Court (Trial Court)---Scope---Ordinary residence of ward---Question of jurisdiction

even if made dependent on ordinary residence of ward, it may not be a pure question of law that could be assailed at any
forum or at any time---Such question had to be specifically pleaded so that the facts in such regard were brought to the
notice of the Court---Question of jurisdiction was, thus, not a simple question of law rather a mixed question of law and
facts which required determination through evidence.

Mst. Samina Saeed v. Nayyer Nazir and others 1982 CLC 799; Khalid Mehmood v. Mst. Ruqia and another 1999
CLC 1137; Muhammad Shafqat v. Additional District Judge, Talagang and others 2004 YLR 325 and Asif Mowjee v.
Mst. Fatema A. Mowjee and another PLD 1987 Kar. 239 ref.

(c) Guardians and Wards Act (VIII of 1890) ---

----S. 9---Objection regarding jurisdiction of Guardian Court --- Such objection had to be taken/pleaded at the earliest.

Muhammad Sadiq v. Nazar Muhammad and others 1995 SCMR 907 and Chaudhry Ghulam Nabi v. Mirza Javaid
Iqbal 1994 SCMR 1893 ref.

(d) Family Courts Rules, 1965---

----R. 6(b)---Family Court---Territorial jurisdiction---Scope---Court within the local limits of which the 'parties' reside or
last resided together---'Parties'---Meaning---Word 'parties' included 'party'---Limited meaning to the word "parties" could
not be given---Court would have jurisdiction, if any of the party or both parties resided within its local limits.

(e) Guardians and Wards Act (VIII of 1890)---

----S. 17---Restriction on movement of ward/minor---Direction by Trial Court not to remove the minor from the
jurisdiction of the Court---Legality---Welfare of minor---Scope---While dismissing the application of father for
permanent custody the Trial Court directed both the parties not to remove the ward from the jurisdiction of the Court and
to deposit the passport of minor---Appellate Court upheld the order of Trial Court on the basis that if the minor was
removed from the jurisdiction of the Trial Court, the father would be deprived of visitation rights and would be seriously
prejudiced; held, that visiting rights of father was only a part that played a role in the welfare and well-being of the child
but it did not form the entire ingredient or composition in the upbringing and grooming of a child---Minor belonged to a
family which could afford a better upbringing, education and environment either in Pakistan or anywhere in the world---
Courts below should not have seen welfare of the minor only from the angle that the father would miss his opportunity to
see his child but it also had to be seen whether a ward who was capable of studying abroad, in case opportunities were
available to him, should be deprived on account of the fact that father must not miss his visiting opportunities---Every
child has its own peculiar circumstances and his welfare demands may vary---Restriction on movement, in the present
case, appeared to be a tool to settle score with the mother but it would not serve the welfare of the minor---High Court
set-aside the restriction on movement of the ward and directed that the passport should be returned to the ward; that the
ward was at liberty to travel and to be admitted in any best available educational institution, be it in Pakistan or foreign
country as desired by the mother, however the selection of the institution shall be subject to approval and permission of
the father; that the father shall not be unreasonable in issuing no objection to the admission of the ward to any school,
college or university; that any movement of the ward away from the foreign country where the mother desired to take the
child for educational benefit or change of school and college etc, within or outside the foreign country, shall be subject to
permission of father, however he shall not be unreasonable in considering such request of change of institute and should
not withhold such permission in case it was meant for the welfare of the ward; that the father was at liberty to visit the
ward at least once in 15 days and/or as many days as agreed between the parents; that insofar as the winter or summer
vacations were concerned, father had a right to be with his son and father may travel to him, if he so desired to spend
vacation for any period, which may not exceed 30 days during summer vacation and 15 days during winter vacations, or
the parties may set a schedule annually on such terms and conditions as they deemed fit and proper---Constitutional
petition was disposed of accordingly.

(f) Guardians and Wards Act (VIII of 1890)---

----S. 17---Welfare of minor---Scope---Welfare of the minor included his material, intellectual, moral and spiritual well-
being---Court was duty bound to take care of the ward's welfare and should ensure that the litigating parents were not
settling their own score or satisfying their vanity.

Sameer Ghazanfar for Petitioner.

Shahan Karimi for Respondent No.1.

Date of hearing: 7th February, 2018.

JUDGMENT

No matter

how genuine the dispute would be

between husband and wife, the victim is always a ward.

MUHAMMAD SHAFI SIDDIQUI, J.---The petitioner and respondent No.1 solemnized marriage on
22.12.2004 at Karachi. Out of the wedlock the ward namely Hasan Gillani (hereinafter referred to as "ward") was born in
America on 21.5.2009. The parties are Canadian national and were settled in Kuwait. In pursuance of her rights under
contract of Nikah, petitioner pronounced Talaq-e-Tafweez vide letter dated 12.3.2013 and a notice in pursuance thereof
was sent to the respondent. On receipt of notice, the litigation commenced and the 'respondent/father filed a Guardian
and Ward Application No.610/2013 on 22.5.2013 claiming custody of the ward. On receipt of notice/summons the
petitioner/mother filed written statement and has given parawise reply to the contents of the application. Evidence of the
parties i.e. petitioner and respondent were recorded and they were subjected to cross examination. The application of the
respondent for permanent custody of the ward was declined however the parties contesting the Guardian and Ward
Application were directed not to remove the minor from the jurisdiction of the trial Court and were also directed to
deposit the passport of the minor.

Aggrieved of a part of the judgment whereby the movement of the ward was restricted, petitioner/mother filed an
appeal under section 14(1)(b) of the Family Courts Act, 1964 read with Section 47 of Guardians and Wards Act, 1890.
This too was dismissed maintaining the order of the Guardian Court which restricted the movement of the ward on the
ground of welfare.

The respondent did not file any appeal against the order dismissing his application for permanent custody and for
him the order of Guardian Judge was final. On account of dismissal of the appeal of petitioner/mother on the limited
ground she preferred this petition.

The paramount argument of petitioner's Counsel while challenging the two impugned orders, which restricted the
movement of the ward, was that the Guardian and Wards Court had no territorial jurisdiction as the ward was not
ordinarily residing, within the jurisdiction of the trial Court. Counsel for the petitioner submits that though there is no
exact definition of the word "ordinary residence" in the Guardians and Wards Act itself however the superior Courts have
interpreted the same at various occasions and marked a distinction between the "ordinary residence" and "temporary
residence". He argued that entire structure on which the two Courts decided the application was based on the ground that
the child was ordinary resident of Karachi. The residence of the ward within the jurisdiction of the Court can at the most
be considered as temporary residence which does not allow the Guardian Court to assume jurisdiction hence in view of
the established principle that the jurisdiction of the Court, seizes of the matter, had the assential obligation to determine,
if it could exercise such jurisdiction failing whereof it is only considered to be a judgment as "coram non judice". He
submits that the ward being American national by birth and before coming to Pakistan was permanently and ordinarily
residing in Kuwait with his parents and hence, the jurisdiction of trial Court does not extend, in such a situation, over the
ward as he was here only for a visit and shall not be subjected to the laws of Pakistan.

In the alternate Counsel for petitioner further highlighted that under section 105 of the (UCCJAE) Uniform Child
Custody Jurisdiction and Enforcement Act, 1997, any foreign country would be deemed to be a "State" when the same is
read in juxtaposition with definition in Section 102 subsection (15) ibid, hence any order passed by any foreign Court
shall be considered to be a judgment passed by the American Courts and thus would be enforceable and hence the
restriction in the movement of ward is not only illegal and unlawful but also deprives the ward of his movement right and
also against the welfare of the ward.

Mr. Shahan Karimi learned Counsel appearing for respondent/ husband has argued that the ward was actually
removed from the house of respondent in Kuwait by the petitioner on 12.3.2013. He argued that this is nothing but
abduction as the ward was removed without permission of father. He submits that the respondent however soon realized
when divorce papers were couriered to him in the end of March 2013 with its purchase stamp dated 28.12.2012. He
argued that the divorce papers having stamp endorsed thereon shows that such planning started somewhere in December,
2012. He argued that numerous attempts were made by respondent for amicable resolution but all in vain and ultimately
he had to file an application to obtain permanent custody of the ward by moving an application before the Guardians and
Wards Court. Counsel submits that the reliance on section 9 of the Guardians and Wards Act with submission that
Karachi is not the ordinary residence of the minor is baseless. He submits that the petitioner in paragraph-6 of the written
statement has conceded to the jurisdiction by saying that permanent residence of the ward is Karachi. In addition to the
above in para-10 of her written statement the petitioner stated that the ward has been enrolled in a best school in Karachi.
In para-16 it has been highlighted that the point regarding jurisdiction of the Court is not disputed. Learned Counsel for
the respondent further highlighted that in an application filed by the petitioner/mother for permission to travel abroad
though was declined but, inter alia, she stated that the ward is ordinarily residing at Karachi and there is no question of
his removal from territorial jurisdiction of this Court. He further argued that since the Counsel was not satisfied with the
conclusion of the trial Court and the appellate Court, this belated plea of jurisdiction, at this stage, is taken. He argued
that the petitioner has filed Civil Miscellaneous Application No. 1854/2015 before Hon'ble Supreme Court which was
dismissed on 27.5.2015 which concerns the transfer of case from Karachi to Islamabad. He further argued that the
Hon'ble Supreme Court in para-3 of the judgment was pleased to observe as under:

"----In this petition, the petitioner stated that she was residing with the respondent in Kuwait and when the
marriage was dissolved she "decided to return to Karachi to resume their permanent residency at the address
supplied for in the title to the memo" and "that since March of 2013, the petitioners have been ordinarily residing
at Karachi.---"

He argued that it is a well settled principle of law that the objection as to the jurisdiction should be taken at the
earliest. Reliance is placed on the cases of Muhammad Sadiq v. Nazar Muhammad and others reported 1995 SCMR 907
and Chaudhry Ghulam Nabi v. Mirza Javaid Iqbal reported 1994 SCMR 1893. Without prejudice, he submits that even if
this ground is allowed to be taken, the petitioner cannot approbate and reprobate since she has conceded and surrendered
to the jurisdiction as stated above. He argued that determination of ordinary jurisdiction is not only a question of law but
a question of fact as well and could have been decided after recording evidence, had it been taken specifically in the
written statement. Reliance is placed on Mst. Samina Saeed v. Nayyer Nazir (1982 CLC 799), Khalid Mehmood v. Mst.
Ruqia and another (1999 CLC 1137), Muhammad Shafqat v. Additional District Judge, Talagang and others (2004 YLR
325) and Asif Mowjee v. Mst. Fatema A. Mowjee and another (PLD 1987 Karachi 239).

He argued that the question of territorial jurisdiction is to be regulated under the West Pakistan Family Courts
Act, 1964 and not under Guardians and Wards Act, 1890. Reliance is placed on Rule 6 of the West Pakistan Family
Courts Rules, 1965 framed under West Pakistan Family Courts Act, 1964 which provides that the Courts for jurisdiction
to try subject suit will be that within the local limits of which the cause of action wholly or in part has arisen or where the
parties reside or last resided together. He argued that during five years approximately 160 visits were made by the
respondent and he is very much willing to continue such visits to maintain his bond and emotional link with ward.

He argued that the right of hazanat of petitioner has ceased under the Islamic law as the ward turned almost nine
years. He submits that ward is dual national and the Citizenship Act, 1951 allows a Pakistani to hold dual nationality and
hence he is subjected to Pakistani laws. He argued that the movement of the ward is regulated under section 26 of the
Guardians and Wards Act and hence such powers were exercised by the two Courts below lawfully. He submits that the
restraining order was passed keeping in mind that the ward was initially removed from Kuwait without permission of
father.

I have heard the learned Counsel and perused the material available on record.

The respondent/father along with his affidavit-in-evidence filed marriage certificate, birth certificate of ward and divorce
deed which were not disputed. No other documents apart from these as referred in the examination-in-chief were filed by
the father/respondent.
 It is so unfortunate that the trial Court has not perused or relied upon or attempted to discuss the evidence that
was recorded by the parties. The contention of the advocate was recorded by both Courts and on the basis of discussion
the trial Court observed that no cogent reason available to disturb the "current setup" of the minor.

By fluke it may turn out to be a correct order but the trial Court was under obligation to discuss the evidence
insofar as the welfare of the ward is concerned. While dismissing the application for permanent custody under section 25
of the Guardians and Wards Act both the parties were directed not to remove the ward from the jurisdiction of the trial
Court and were further directed to deposit the passport of minor. Respondent/ father who stated to have been disturbed by
sudden removal of ward from his house at Kuwait had not preferred any appeal insofar as the dismissal of his application
for permanent custody is concerned. This raised my eyebrows. The respondent/father perhaps got satisfied in view of the
restraining order for the removal of the ward. The appeal was however preferred by the petitioner/mother on the limited
ground that pertains to removal of child from the jurisdiction of the trial Court. There is not much in the judgment of the
appellate Court as well insofar as the reasoning is concerned. The appeal pertains to injunctive order concerning removal
of the child therefore the appellate Court ought to have formulated reasons and justification for maintaining the order or
even if it would have been reversed. The appellate Court found the judgment of the trial Court as not interferable as in
case the child is removed from the jurisdiction of the trial Court the father would be deprived of visitation rights and he
(father) would be seriously prejudiced and hence the appeal was dismissed.

The primary object of the Guardian and Ward Court or for that matter appellate Court was to discover as to where
the welfare of the ward lies and how such welfare can be effectively achieved and maintained and should not have
concerned with the visitation rights of father.

* Does the welfare lie in visitation rights of father/mother by restricting movement of child from jurisdiction
of the trial Court?

* Does it lie independent of above, in restricting the movement of the ward?

I am sure at times such restraining orders may justify a situation insofar as the welfare of the ward is concerned
but in the instant matter that I am dealing with, it was never discussed and remained a mystery for two Courts below as to
whether such restraining order would really serve as welfare of the ward or otherwise. The reasoning assigned by the trial
Court in passing restraining order was the "visitation rights of father".

An interlinked issue with this issue is the point of jurisdiction.

Before deciding core issues, the primary objection of jurisdiction is relevant and to be discussed first while I leave
the current discussion of movement of ward for later part. The above background is necessary for reaching a just and fair
conclusion.

Jurisdiction issue

The child may be an American national by birth and he may have been permanently residing in Kuwait with
parents but he is a dual national. When the respondent/father surrendered to the jurisdiction of the trial Court by moving
an application under section 25 of the Guardians and Wards Act, it was promptly responded and replied by filing written
statement and jurisdiction conceded by petitioner. When an application as Civil Miscellaneous Application
No.1854/2015 was filed before Hon'bte Supreme Court it was dismissed in terms of para-3 of the judgment and the
Hon'ble Supreme Court observed that in the petition No.1460/2013 petitioner stated that she returned to Karachi to
resume their permanent residency at the address mentioned in the title and that they were ordinarily residing at Karachi.
It was further observed that petitioner/mother disclosed that child had been admitted in the Convent of Jesus and Marry
at Karachi. Thus her own pleading before the High Court shows that petitioner is permanently residing at Karachi along
with child and on this count the transfer of the case from Karachi to Islamabad was declined by Hon'ble Supreme Court.

Perusal of written statement shows that mother/petitioner who is now attempting to challenge the jurisdiction, has
actually acquiesced to the jurisdiction of trial Court. In para-1 petitioner stated that the child is residing in Karachi. In
paras-6 and 10 of the written statement she categorically admitted the jurisdiction of the trial Court and also denied
forced removal of ward. Thus if there was any one to challenge the jurisdiction of the trial Court, it was father/respondent
who himself surrendered to the trial Court. Once petitioner acquiesced to the jurisdiction, she cannot approbate and
reprobate at the same time. The question of jurisdiction even if made dependant on ordinary residence of ward, it may not
be a pure question of law that can be assailed at any forum or at any time. For that it has to be specifically pleaded so that
the facts in this regard be brought to the notice of the Court. It is, thus, not a simple question of law rather a mixed
question of law and facts which requires determination through evidence. Reliance is placed on the cases of:

1. Mst. Samina Saeed v. Nayyar Nazir and others (1982 CLC 799).

2. 1999 CLC 1137, Khalid Mehmood v. Mst. Ruqia and another.

3. (2004 YLR 325), Muhammad Shafqat v. Additional District Judge, Talagang and others.
 4. PLD 1987 Kar. 239) Asif Mowjee v. Mst. Fatema A. Mowjee and another.

The objection regarding jurisdiction had to be taken at the earliest and reliance is placed on the cases of:

1. Muhammad Sadiq v. Nazar Muhammad and others (1995 SCMR 907)

2. Chaudhry Ghulam Nabi v. Mirza Javaid Iqbal (1994 SCMR 1893)

However the issue concerning territorial jurisdiction in the custody/ guardianship matter is regulated under West
Pakistan Family Courts Act, 1964 and not under the Guardians and Wards Act, 1890. Section 5 of the West Pakistan-
Family Courts Act, 1964 deals with the jurisdiction subject to the provisions of Muslim Family Law Ordinance, 1964.
The family Courts were entrusted with exclusive jurisdiction to entertain, hear and adjudicate the matters specified in
part-1 of the schedule. Part-1 of the schedule in pursuance of Section 5 of the West Pakistan Family Courts Act, 1964
includes the subject of guardianship at serial No.6. Thus the provisions of West Pakistan Family Courts Act, 1964 have
overriding effect over Guardians and Wards Act. The jurisdiction is thus regulated under Act of 1964 and the rules
framed there-under. Rule 6 as framed under West Pakistan Family Courts Act, 1964 deals with the jurisdiction to try a
suit within the local limits of which;

(a) The cause of action wholly or in part has arisen.

(b) Where the parties reside or last resided together.

In subject clause (b) the word "parties" include "party". A limited meaning to the word "parties" cannot be given,
as the later part of this sub-clause serves that purpose in a case where they (both) last resided together. So in case, if any
of the party reside within the local limits of a Court or together resided has the jurisdiction. This is in addition to a
jurisdiction where the cause of action wholly or in part has arisen. Even otherwise the advantage of section 9 of the
Guardians and Wards Act cannot be extended for the benefit of petitioner/mother as she has already surrendered to the
jurisdiction by admitting and accepting that the minor is ordinarily residing within the local limits of the Court where she
was/is residing which entertained the application under section 25 of the Guardians and Wards Act.

In the case of Anne Zahra v. Tahir Ali Khilji and others reported in 2001 SCMR 2000 the issue of jurisdiction
was summarized by the Hon'ble Supreme Court as under:

"--6.------Rule 6 of the West Pakistan Family Courts Rules, 1965 framed under the West Pakistan Family Courts
Act, 1964 provides that the Court which shall have jurisdiction to try a suit will be that within the local limits of
which the cause of action wholly or in part has arisen or where the parties reside or last resided together,
therefore, it was under the provisions of the said rules that the question of territorial jurisdiction of the Family
Court was to be decided under the said Act and not under the provisions of the Guardians and Wards Act. The
Guardian Judge as also the learned Additional District Judge, however, decided the question of territorial
jurisdiction in this case by applying the provisions of the Guardians and Wards Act and not the West Pakistan
Family Courts Act, 1964 and the rules framed thereunder which as held by the High Court in the impugned
judgment was not correctly decided.

7. ------we are afraid, the argument is plainly unsound and cannot be accepted on any reason. As has been
observed, the West Pakistan Family Courts Act, 1964 has overriding effect insofar as the matter included in
Schedule, therefore, initially it is the Family Court which has to be approached in respect of matters relating to
custody of minor being one of the listed item in the Schedule and in determining as to which of the Family Court
shall have jurisdiction to entertain such a petition shall have to be decided under the provisions of the said Act
and the rules framed thereunder and once a Family Court is approached accordingly by a party considering that a
particular Family Court was vested with the territorial jurisdiction to entertain the petition, for the purposes of the
trial of the same, the procedure as prescribed under the said Act is not to be followed but the general procedure
for the trial of suit under the Civil Procedure Code has to be followed which has no nexus or relevancy with the
question of determination of the trial jurisdiction of the Court. By virtue of section 25 of the West Pakistan
Family Courts Act, every Family Court under the said Act competently seized of a matter relating to matter of
minors shall be deemed to be a District Court.----"

Although it is stated by respondent No.1 /father that the ward was forcibly removed from his house in Kuwait whereafter
he lodged complaint before the authorities however there is nothing in the shape of any complaint to any authority on
record. I am also mindful of the fact that in para-5 of written statement such allegation was denied.

Hence I would score off the point of jurisdiction in ousting the respondent from approaching the Guardian Court
at Karachi.

Movement or Restriction in Movement of ward

Now the core issue which is also impugned here is the restriction in the movement of the ward and whether it
would serve as a benefit for the ward. This issue cannot be simply answered as done by the two Courts below on the
count of visitation right of respondents.

In a dispute between husband and wife, a ward is being penalized for what his parents might have done. If there is
a best educational institute in any part of the world including Pakistan, why a ward/child be deprived of such when he is
pilvileged to have access to such institute. Will any visiting right of father or mother alone would serve as a welfare of
child. Why this psychological trauma be given to ward that he cannot move around even beyond territorial jurisdiction of
a Senior Civil Judge comprising of few Police Stations and in fact few kilometers. Both the parents here are Canadian
nationals whereas child is American national as well apart from being Pakistani national. Both parents claimed to be
foreign qualified. The mother and father before their relationship got strained were working in Kuwait. 160 visiting rights
of father/respondent is only a part that plays a role in the welfare and well being of the child but does not form entire
ingredient or composition in the upbringing, and grooming of a child. The ward belongs to a family which can afford a
better upbringing, education and environment either in Pakistan or anywhere in the world which was restricted and
curtailed by restriction in his movement.

The Courts below should not have seen welfare only from the angle that the father/respondent must not miss his
opportunity to see his child but it must also be seen from the angle as to whether a ward who is capable of studying
abroad, in case the opportunities are available to him, should he be deprived of on account of the fact that father must not
miss a visiting opportunity?

The father/respondent who was so enthusiastic for having the custody of the ward when he filed application under
section 25 of the Guardians and Wards Act lost all such desire and venom when the restraining orders in respect of
movement of the ward was passed. The trial Court and the appellate Court dealing with the Guardian and Ward cases do
not enjoy the jurisdiction for the sake of jurisdiction but they enjoy jurisdiction to ascertain where the welfare of the ward
can be served at its best. The trial Court as well as the appellate Court has not provided any reasoning as to why the ward
should not get an opportunity to study abroad when the father/respondent himself surrendered in having custody of the
ward on permanent basis as there is no appeal against the order dismissing his application for permanent custody.

Is it welfare of the child that his movement be restricted to the jurisdiction of the trial Court so that father may
visit him once in 15 days?

Is it welfare of the child that his passport be surrendered to the trial Court and the ward be restricted to move and
that too in a situation where both parents are Canadian nationals and child being American national? In such a situation
he would be compelled to grow-up in an atmosphere where his movement is restricted. This dual national Pakistani
citizen would carry this image throughout in his mind.

Can a ward be good Mathematician, Engineer, Doctor, Physicist, Chemist, Astronaut, business entrepreneur etc.
on account of such visitation rights of his father alone once in 15 days and that too within the limits of civil/family
Court's jurisdiction? .

In any other case it would have been the welfare considering the situation of the ward while being at Karachi and
only Pakistani national but the situation here is different as the child is privileged to have access to any educational
institution around the world including Pakistan. An educational institute or an environment for which most of the
children could only dream for. Every child has its own peculiar circumstances and the welfare demands may vary. The
restriction in the movement in the present case appeared to be a tool to settle score with mother/petitioner but it will not
serve as the welfare of the child. The father/respondent who had raised serious allegations against the mother/petitioner
as he claimed that she is not fit to take care of ward yet is not serious in having the custody of the ward, although none of
them stands proved in evidence. There are ways and mechanism to regulate the movement which is not achieved by of
restricting the movement.

In cross-examination of mother conducted by Mr. Kazim Hassan Advocate, as against some of the questions, the
mother/petitioner kept quiet though in my view some of the questions were very relevant. In the cross-examination of
mother, not a single question, as to serious allegations raised in para-8 onward of the application, was raised. The cross-
examination was limited to personal accomplishment of the petitioner/mother however as against the welfare of the ward
material questions are missing. Insofar as the cross-examination, of father/respondent is concerned as conducted by the
petitioner's Counsel, though most of the suggestions of petitioner's Counsel were denied but it remains an admitted fact
that he attended business trips in different countries. He remained in USA for a business conference for about six weeks.
The father/respondent however denied a suggestion that respondent wanted to move Canada with ward Hassan for
education after her divorce. Respondent denied the suggestion that he wanted the custody of ward Hassan only to move
to Kuwait.

Welfare of the minor includes his material, intellectual, moral and spiritual well being. In accomplishment of such
object it becomes the duty of the Court to take care of the ward's welfare and shall ensure that the litigating parents are
not disputing to settle their own score or to satisfy vanity or even to soothe his/her craving of love and affection for
minor as it could only he done if the welfare of the ward demands. Guardian Courts sometime lose sight of the welfare of
the ward when love and affection is demonstrated by parents which is considered as overriding effect. True love of
mother and father no doubt is important but what is more important is the welfare of the ward and it should not be limited
to any one's right of custody, but a larger view is to be taken from ward's point of view.

No doubt father is a natural guardian and .any decision that concerns material, intellectual, moral or spiritual well
being is always a father's prerogative, but such can always be maintained and achieved in case the custody remains with
mother. There are occasions when both parents or at times even the environment that they have is not considered as
conducive for ward, custody and supervision may be entrusted to foster parents.

On the basis of cumulative effect of all facts discussed above, I would thus attempt to dispose of this petition as
under:

1. That the restriction in movement of the ward is set aside and passport be returned to the ward.

2. the ward is at liberty to travel and to be admitted in any best available educational institution, be it in
Pakistan or in America as desired by mother. However the selection of any educational institution shall be
subject to approval and permission of father

3. The father shall not be unreasonable in issuing no objection to the admission of the ward to any
prestigious school, college or university as deem fit and proper.

4. As mother is desirous of taking the ward to America for education, any movement of the ward away from
America for educational benefit or change of school and college etc, within or outside USA, shall be
subject to permission of respondent/father as being natural guardian, however he shall not be unreasonable
in considering such request of change of institute and will not withhold such permission in case it is meant
for the welfare of the ward.

5. The respondent/father is at liberty to visit the ward at least once in 15 days as per Court order and/or as
many days as agreed between the parents.

6. Insofar as the winter or summer vacations are concerned, father has a right to be with his son and father
may travel to him, if he so desires to spend vacation for any period, which may not exceed 30 days during
summer vacation as per Court order and 15 days of winter vacation, or the parties may set a schedule
annually on such terms and conditions as they deem fit and proper.

The petition stands disposed of the in the above terms.

MWA/S-26/Sindh Order accordingl