Under section 12 of Guardian and Wards Act 1980 is the Section if any dispute arose between the spouse/husband and wife regarding the custody/meeting of the minors. If the custody of the minor is with the father or mother the other party desire to meet with the minor or the person having the custody of the ward refuse to allow the other party to meet with his/her son / daughter.
Custody of minors
Either party have a right under Guardian and Ward Act 1980 to file application before the family Judge praying therein for temporary custody of the minor along with the application for permanent custody. Ordinally, in Pakistan, the Court allow their applications with direction the applicant to meet with his/her ward in court for one or two hour and direct the respondent to produce the minor in the court after every two weeks for one and two hours for the purpose of the meeting.
The applicant has no right even to sit with his/her son/ daughter outside the court. Applicant force to sit in the court along with ward in such circumstance neither the applicant nor the ward feels comfortable. In such like cases it observes that the ward also observing the court proceedings even the criminal proceeding going on / proceeded in front of minors which psychologically effect the minor.
It is very important that the applicant either is a father or a mother is only person who allow to meet with the minor the other relatives of the applicant have no right even to sit with the minor along with applicant. In these circumstances, the minor is totally unacquainted about the other relations like cousin, uncles, aunt and other grand relations which is very important for upbringing the minors mental health and if the court allows the applicant to bring the ward with him or her to his / her home for six to ten hours and spend that time with all the family members of applicant at home. It is psychologically proved that the healthy atmosphere builds the healthy/brain personality.
That the question arises here that Court why not handing over the custody such like cases even in the Guardian Wards cases the court become the Guardian of the wards. there was a case which was reported in PLD 2008 Lahore at Page # 527. The Honorable Court observed that wards as well as the persons who is meeting with him/her is not comfortable at Court Room and the same discussed as under: –
In Guardianship matters Courts exercise quasi parental jurisdiction, the supreme consideration, in this context is the welfare of the minors, to achieve this purpose Courts have unfettered power, thus, application under section 12 of the Guardians and Ward Act is required to be decided on this principle.
It is an inherent right of the contesting parent to seek visitation to the minor, especially a father, who is the natural guardian, he not only is required to participate in the up-bringing of the minor, but also should develop love, bondage and infirmity with them, to achieve this purpose, the concerned Court should facilitate a congenial, homely and friendly environment and a reasonable visitation schedule. The court of the guardian Judge, for this purpose, is neither conducive nor effective, it lacks proper facilities and arrangements, and is not comparable to a homely environment.
Thus, meeting in court premises does not serve the purpose of meeting. It, therefore is not in the interest or welfare of the minors to hold meeting in court premises. Thus , meetings of minors with parents should preferable be held at the premises of the contesting parent to familiarize the minors with the environment there, to strengthen a healthy relationship and dispel fears of a future re-union and only in extreme and exceptional cases the court of guardian Judge be chosen as a venue for which detailed reasons should be cited, thus, a mechanical order, in this context is not tenable. As the petitioner has no resident in Lahore, therefore, the closed place to a home is a hotel, thus, the request of petitioner for change of venue to Hotel, Lahore is reasonable and therefore allowed.
As far as time frame of the meeting is concerned, it too, is insufficient and inadequate. The petitioner has to travel all the way from Dubai to Lahore to hold this meeting with the minor, the father being natural guardian has a right to meet a minor for a reasonable time to familiarize with them, so that minor recognize him and develop love, bondage and affinity for him. Therefore, the request for enhancement in time span is also allowed. The petitioner shall henceforth meet them for 5-1/2 hours ( 11-00 a.m to 4-30 p.m on the scheduled days chalked out by the guardian Judge, Lahore).
As far as the request for enhancement of visitation right from the first Saturday and last Saturday currently in vogue, to every Saturday is concerned, the minors are too young and such change, presently will not be conducive at this stage, therefore, the request in this regard is declined.
Removal of minor from court jurisdiction
Lastly respondent No 1 has apprehension, that minors may be removed from the jurisdiction of this court by the petitioner. To rest this apprehension the minors are placed on the Exit Control List, the petitioner shall also execute a surety bond in the sum of Rs. 2.5 Million with one surety to the Deputy Registrar (Judicial) of this court, before the next meeting giving an undertaking that minors shall not be removed from the jurisdiction of the court of Guardian Judge, Lahore. To ensure the safety of the minors and ward off any altercation between the spouse and adherence to, time frame by both parties, a bailiff of this Court shall collect and drop the minors from respondent NO.1’s residence, he shall remain present, during the meeting outside the room, and retain the passport of the petitioner with him during the currency of meeting.
Ms. Sapna Sewani is an advocate at High Court, she is a professional lawyer, legal advisor and practicing in the high court and city court of Karachi, she is also the member of Sindh Bar Council. She can be reached at firstname.lastname@example.org