4/2017 Const. P. Scherazade Jamali (Petitioner) V/S Hasim Gillani & Others (Respondent)
Sindh High Court
Bench: Hon'ble Chief Justice Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 27-MAR-18
The primary object of the Guardian & 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. --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 Guardian & Wards Act, it was promptly responded and replied by filing written statement and jurisdiction conceded by petitioner. --Once petitioner acquiesced to the jurisdiction, she cannot approbate and reprobate at the same time. The question of jurisdiction even if made dependent 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. --Movement or Restriction in Movement of ward-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? --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.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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