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Official Citation: 2024 CLC 2057
Court / Jurisdiction: Lahore High Court
Year of Decision: 2022
Decision Date: 2022-10-10
Parties: Mst. Alia Sehr vs Mushtaq Ahmed and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2022-10-10, officially reported as 2024 CLC 2057. In this matter between Mst. Alia Sehr and Mushtaq Ahmed and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 CLC 2057
Court Name: Lahore High Court Judge(s): Rasaal Hasan Syed Title: Mst. Alia Sehr vs Mushtaq Ahmed and others Case No.: Writ Petition No.61653 of 2020 Date of Judgment:2022-10-10 Reported As: 2024 CLC 2057 Result: Petition allowed
JUDGMENT
JUDGMENT RASAAL HASAN SYED, J. The instant Constitutional petition has been filed to call into question judgment/order dated 02.11.2020 of the learned Addl. District Judge, Toba Tek Singh whereby the appeal of respondent No.1 was accepted and the case was remanded to the learned Guardian Judge/Family Court for de novo decision. 2. Essential facts from which the instant petition stems are that on 27.10.2018 respondent No.1, Mushtaq Ahmad, filed a petition under section 25 of the Guardians and Wards Act, 1890 (the Act") before the learned Guardian Judge/Family Court, Toba Tek Singh for the custody of the minors Basham Fatima, Yashfa Fatima and Abdullah Mushtaq, asserting that his previous petition for custody of the said daughters and son was dismissed on 25.5.2018, the minors were not properly taken care of by the respondent Mst. Alia Sehar who were being treated brutally, the minors informed that their mother after taking medication becomes somnolent and that their education was being adversely impacted by her neglect. It was alleged that the petitioner Mst. Alia Sehar was under treatment with one Dr. Imtiaz Dogar, a psychiatrist, and that on his prescription she was taking medication for mental disorder and that for the welfare and proper upbringing of the children and to save them from threat to their lives, the custody of the minors ought to be given to respondent No.1 who was their real father. 3. The petition was resisted on legal as well as factual grounds explaining that an earlier petition under section 25 of the Act by respondent No.1 on identical allegations was dismissed, that the allegations against the petitioner were false and mala fide, that the minors were being properly looked after by the petitioner mother and that the respondent father had voluntarily relinquished
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his claim and agreed to a visitation schedule to meet with the minors and that the second petition was barred by section 11, C.P.C. After evidence the learned Guardian Judge concluded that the petition filed by the respondent was hit by the principle of res judicata on account of dismissal of his earlier application and that on merits also respondent No.1 had failed to prove that the welfare of the minors would lie in his custody. Respondent No.1 challenged the order in appeal which was allowed by the learned Addl. District Judge vide order dated 02.11.2020 in terms whereof the findings on issue No.1 as to the applicability of the rule of res judicata were reversed and the case was remanded to the court below for decision of the petition for custody on merits keeping in view the principles of law regulating their welfare. 4. Learned counsel for the petitioner submits that the findings recorded by the learned Addl. District Judge on issue No.1 are based on misreading and non-consideration of the material on record in the presence whereof the petition for custody of the minors was incompetent due to bar of res judicata as well as the rule of estoppel and that in any case the evidence being available on the file the learned Addl. District Judge could not remand for de novo decision and that instead the rule required that the appellate court shall decide the appeal on merits as there was sufficient material/evidence on record to non-suit respondent No.1. Learned counsel for the respondent contrariwise has supported the view of the appellate court and it was urged that the case was correctly remanded as findings on issue No.2 were not recorded by the trial court after consideration of the evidence on record. 5. Perusal of the relevant documents reveals that the respondent had earlier filed a petition under section 25 of the Act for the custody of the minors raising the allegation that the petitioner was under treatment of one Dr. Imtiaz Dogar for mental disorder and that the minors were not being accorded expected motherly treatment and that the minors used to claim being subjected to cruel treatment at her hands and that the welfare of the minors would be best served by giving their custody to the father. Copies of the statements in the said case titled "Mushtaq Ahmad v. Alia Sehar" are available at page 56.of the instant petition, careful scrutiny whereof shows that on 30.4.2018 respondent No.1 appeared before the learned Guardian Judge and recorded his statement to the effect that if father of the petitioner Mst. Alia Sehar, namely, Abdul Shakoor would take Special Oath upon the Holy Quran to the effect that Mst. Alia Sehar was not a patient of mental disorder then his petition for custody of minors be dismissed and if the father of the petitioner states that the petitioner was suffering from mental disorder then his application for custody be accepted and custody of the minor be delivered to him. The statement was signed by Musthaq Ahmad respondent No.1. In response Mst. Alia Sehar recorded her statement which is available on the same page wherein she accepted the offer recorded by respondent No.1 and stated that her father was willing to take the Special Oath. In view of the statements of the parties the learned Guardian Judge fixed the case for 12.5.2018 for appearance of the father of the petitioner, Abdul Shakoor, for taking Special Oath as proposed. 6. Case was taken up on 12.5.2018. Order-sheet shows that Ch. Imran Bin Ahsan, Advocate was present on behalf of Mst. Alia Sehar while Mr. A. Habib Ch., Advocate was present on behalf of Mushtaq Ahmad. Both parties were also present in person along with the father of Mst. Alia Sehar, namely, Abdul Shakoor. Statement of Abdul Shakoor was recorded who on Special Oath deposed that his daughter was not a patient of mental disorder and that he never got her treatment from Dr. lmtiaz Dogar prior to marriage or after marriage and that the petitioner was never given any treatment for mental disorder and that Mushtaq Ahmad's petition be dismissed. After Abdul Shakoor's statement, statement of Mushtaq Ahmad was recorded whereafter the learned Guardian Judge dismissed Mushtaq Ahmad's petition under section 25 of the Act. 7. The order of the learned Guardian Judge referred supra was challenged in Family Appeal No.20- 03 of 2018 by respondent Mushtaq Ahmad. During pendency of the appeal another development
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took place namely that a suit for recovery of maintenance allowance and dowry articles instituted by the petitioner Mst. Alia Sehar against respondent No.1 got decreed and in the said case the parties entered into a compromise wherein issue of maintenance, claiming of missing dowry articles of the petitioner and also the issue of the custody of the minors was settled and arrangement of meeting with the minors was scheduled. As per settlement it was agreed that the respondent No.1 would not file any petition for custody of the minors. Copy of order-sheet dated 12.6.2018 in the proceedings titled "Mst. Alia Sehar v. Musthaq Ahmad" is available at page 70 of this petition. Statements recorded are reproduced for facility of reference: "STATEMENT OF CH. MUHAMMAD RIAZ GILL ADVOCATE LEARNED COUNSEL ON BEHALF OF PLAINTIFF WITHOUT OATH States that plaintiff has no objection if, the suit is decided in the light of statement of defendant on special oath on Holy Quran regarding delivery of dowry articles. Furthermore, if, defendant pays Rs.3,500/- per month per head as maintenance allowance of minor plaintiffs Nos.2 to 4 with 10% annual increase from the institution of suit to till their legal limitation, then plaintiff has no objection to decree the suit to that extent and suit to the extent of remaining claims of maintenance allowance may kindly be dismissed as withdrawn. Furthermore, plaintiff would deliver the custody of minors to defendant on the 4th Saturday of every month at about 11:00 A.M and defendant would receive the minor on same day and then would keep the custody of minors till next coming Monday morning and he would return the custody of minors on morning at 8:00 A.M sharp. Furthermore, the plaintiff would also be bound to return the custody of minors to defendant in summer vacation w.e.f 1st July to 10th July of every year, in this regard defendant would receive the minors on 1st July and would return back the custody of minors on 10th day of July of every year. Furthermore, the defendant would also submit the surety bond valuing Rs.30,00,000/-before getting the interim custody of minors. Furthermore, the defendant would never file the custody petition or revision or appeal at any competent forum. Furthermore, after getting the age of majority the minors would be at liberty to join either party as per their wish. I have received Rs.7500/- as interim maintenance allowance from the defendant. My suit regarding remaining claim may kindly be dismissed as withdrawn. RO& A.O 12.06.2018 STATEMENT OF DEFENDANT NAMELY MUSHTAQ ARMED SON OF ABDUL HAQ. CASTE JUTT, RESIDENT OF CHAK NO.479/G.B TEHSIL SUMMANDRI DISTRICT FAISALABAD On oath States that I am agree with the supra mentioned statement of the learned counsel for plaintiff. Furthermore, I am ready to pay Rs.3500/- per month per head as maintenance allowance to minor plaintiffs Nos.2 to 4 with 10% annual increase from the institution of suit to till their legal limitation. However, plaintiff would bound to arrange the meeting/delivery and return of minors to me as per supra mentioned schedule. I would also be bound to return back the custody of minors after completing of supra mentioned schedule. Furthermore, I will never file the custody petition or revision or appeal for getting custody of minors before any competent forum. However, I am ready to give special oath on Holy Quran after delivery of articles which is in my possession. I have also paid Rs.7,500/- as interim maintenance allowance. I am also ready to submit surety bond relating to District Toba Tek Singh. R.O and A.C 12.06.2018" In view of these statements the learned Guardian Judge/Judge Family Court, Toba Tek Singh disposed of the matter vide order dated 12.6.2018 in the following terms:
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"In view of statement of parties, the suit of the plaintiffs to the extent of maintenance allowance is hereby decreed in the manner that minor plaintiffs Nos.2 to 4 are entitled to get Rs.3500/- per month per head as maintenance allowance with 10% annual increase from the institution of suit to till their legal limitation. Whereas, plaintiff would deliver the custody of minors to defendant on 4th Saturday of every month at about 11:00 A.M and defendant would receive the minors on same day and he would keep the custody of minors till next Monday morning. He would return the custody of minor on Monday morning at 8:00 A.M sharp. Whereas the plaintiff would also be bound to return the custody of minors to defendant in summer vacation w.e.f 1st July to 10th July of every year and defendant would return the custody of minors on 10th day of July of every year. Furthermore, the defendant would also submit one surety along with surety bond valuing Rs.30,00,000/- relating to District Toba Tek Singh before getting the interim custody of minors. Furthermore, the defendant would never file the custody petition or revision or appeal thereof at any competent forum. Furthermore, after getting the age of majority the minors would be at liberty to join either party as per their own wish. The suit of the plaintiffs to the extent of remaining claims is hereby dismissed as withdrawn. No order as to cost. Decree sheet be prepared. In view of statement of parties Nadeem Anwar bailiff is directed to receive the articles from the defendant side and deliver to the plaintiff. However, he is directed to prepare the list and get signatures of both the parties on said list and same be submitted before the court. Robkar alongwith order and lists of dowry articles submitted by plaintiff and defendant be issued to bailiff, if any. Now to come up for submission of report of bailiff for 25.06.2018." 8. The other important aspect of the case is that after disposal of the maintenance and custody issues vide order dated 12.6.2018 the Family Appeal No.20-03 of 2018 emanating from order dated 12.5.2018 in petition under section 25 of the Act was dismissed vide order dated 09.10.2018. While deciding the appeal the learned Addl. District Judge also took note of the effect of the order dated 12.6.2018 of the learned Guardian Judge in terms whereof the matter relating to custody was settled with mutual consent. The operative part of the order dated 09.10.2018 in Family Appeals Nos.20-03 of 2018 titled "Mushtaq Ahmed v. Aalia Sehar" is as follows: 7. By filing instant appeal, a new and strange version, was brought that the offer made by appellant before learned trial court was not about the dismissal of main petition filed under section 25 of Guardian and Wards Act, rather same was recorded to the extent of petition under section 12 of Guardians and Wards Act, for interim custody of minors. 1 am afraid, how this stance was taken and brought before this court because statement of appellant was recorded in the open court, in presence of his counsel, on the margin of order sheet photograph of appellant is also visible. I think, this version brought in the instant is nothing but mere an effort to further prolong the litigation. Proceedings carried out by the learned trial court carries presumption of truth. 8. It is also important to note that apart from matter of custody of minor, dispute of maintenance and dowry articles was also pending adjudication before the learned trial court. The matter was decided by the learned trial court in favour of respondent. An execution petition was also filed for seeking fruit of said decree. Again interesting to mention here that on 12.06.2018, after filing of instant appeal, again dispute of family matter was resolved by the learned trial court/Executing Court on the statement of the parties. Order dated 12.06.2018, passed by learned trial court is before me. While recording statements, both the parties made an arrangement as per their free will and wishes. Matter of maintenance of minors was finalized, claim of dowry articles was also satisfied between the parties with mutual understanding. Likewise, matter of custody of minors, arrangement of meeting with minors, have also been settled. In the said settlement appellant specifically stated that if the arrangement made by the parties be given effect, then he would not file any petition for custody of minors. The next order dated 31.07.2018, is also available. This order depicts that the arrangement of meeting with minors has also been given effect and minors were
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handed over to appellant who took minors to his house and as per agreed arrangement minors were returned to the respondent." Curiously on dismissal of the noted appeal vide order dated 09.10.2018, a second petition under section 25 of the Act was launched by the petitioner on 27.10.2018, merely 17 days after the above- noted order wherein similar assertions were made as were subject-matter of first round of litigation and were duly decided through Special Oath at the instance of Mushtaq Ahmad respondent herein himself. The second petition was contested meanwhile on the ground that in the earlier round of litigation respondent had raised similar allegations which he subsequently offered to he decided/determined through Special Oath which was accepted and Special Oath was taken and, in result, the petition under section 25 of the Act was dismissed. And that such respondent No.1 could not be heard to re-agitate the same question which had already been disposed of as a result of the order passed in terms of the Special Oath and that no fresh ground or assertion was made for disturbing the earlier decision qua custody or the arrangement of visitation. The learned Guardian Judge through order dated 18.8.2020 dismissed the petition on legal grounds as well as on merit. The operative part of the findings against issues Nos.1 and 2 are as follows: "ISSUE NO.01 09. The Onus probandi of this issue was on the respondent. The respondent has asserted that earlier custody petition of the petitioner was dismissed by the court vide order dated 25.05.2018 therefore, instant petition is hit by the principle of res-judicata. This fact is admitted by the petitioner in para No.2 of instant petition. Moreover, this fact is proved from Exh.R-4, Exh.R-5, Exh.R-6, Exh.R-7, Exh.R-8, Exh.R-9 and Exh.R-10. These documents are produced by the respondent that earlier custody petition between the same parties and in respect of same cause of action has already been finally decided by the competent court. The bare perusal of contents of Exh.R-4 and present petition proves that petitioner has failed to raise new cause of action. He has not mentioned any fresh ground in the present petition which accrued in his favour after decision of previous petition. The main ground both petitions is that respondent is psycho patient. This assertion of the petitioner has already been turned down by the trial court as well as learned appellate court. So it is maintained that present petition is clearly hit by principle of res-judicata on account of dismissal of earlier similar petition of the petitioner by competent court. So, this issue is hereby decided in favour of respondent against the petitioner. ISSUE NO.2 10. The Onus probandi of this issue was on the petitioner in view of my discussion in issue No.1 it has been maintained that this petition is hit by the principle of res-judicata. Even otherwise it has already been observed by the learned appellate court in judgment dated 09,10,2018 that custody of minors has now become past and closed transaction. Moreover, petitioner has already waived his right of custody by recording his statement on 12.06.2018 by stating that defendant would never filed the custody petition or revision or appeal at any competent forum for getting the custody of minors. 11. For what has been discussed above, it is maintained that the petitioner has failed to prove that welfare of the minors lies in his custody by recording cogent, convincing and mind inspiring evidence therefore, it is maintained that petitioner is not entitled to get the custody of minors. Therefore, this issue is hereby decided against the petitioner," 9. The learned Addl. District Judge allowed the appeal of the respondent against the order with the observation that the earlier cases have not been decided on merits the rule of res judicata will not be attracted and remanded the case for decision afresh on existing evidence. 10. As to the effect that the decision on Special Oath in the previous round of litigation, it needs to be examined as to whether a party making an offer for decision on Special Oath by the opposite side which is accepted and statement is duly recorded, could challenge the decision on the basis
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thereof or could retract from his statement and if not then what will be effect of the order passed on such statement. In this respect reference can be made to the case of "Najibullah Khan and another v. Fazal Karim and 2 others" (1997 SCMR 1085) wherein it was observed that: "We find that in the order dated 6 10-1994, it is clearly stated that the petitioner No. 1 in presence of his counsel offered oath to the plaintiffs which was accepted by the latter. It has also "been stated in the same order that Najeebullah defendant/petitioner agreed and made offer that in case the plaintiffs/respondents take oath on the Holy Qur'an, their suit may be decreed. The presumption of correctness is attached to tie order of the District Judge. Neither the petitioners/defendants, nor their counsel filed any Affidavit to the effect that Najeebullah or the petitioners had not agreed and made offer that in case the plaintiffs/respondents take oath on the Holy Qur'an then their suit may be decreed. When the plaintiffs/respondents took oath on the Holy Qur'an in open Court, the petitioners did not object to it. Now, when the plaintiffs/respondents have taken oath on the Holy Qur'an and the District Judge has decided the suit accordingly, it does not lay with petitioners to resile from agreement and their offer and to say that the decision was made against their consent. The objection that the oath proceedings were not covered by Article 163 of the Qanun-e-Shahadat, 1984 was raised before the High Court and was rightly disposed of. Since the District Judge has decided the appeal in accordance with the Oath taken by the plaintiffs on Holy Qur'an and that too with the agreement of petitioners, we do not see any justification to interfere, with the impugned judgment." (emphasis supplied) The rule in the case supra with reference to a family matter also featured in "Muhammad Imam- ud-Din v. Mst. Saira Bano and 2 others" (2021 CLC 911) wherein it was observed as under: "Besides, the above application, the petitioner through his statement dated 5th December, 2017 also reiterated that if the respondent/plaintiff sworn, takes oath on Holy Quran that such articles mentioned in the plaint have not been returned by the defendant to her or same have not been received by the respondent/plaintiff then he will make payment of Rs.1301,000/- to the respondent/plaintiff . Under Section 17 of the Family Courts Act, 1964 provision of Qanun-e- Shahadat Order, 1984 are not applicable to family Court proceedings. Family Court could regulate its own procedure and was not bound by the rigors of Order 1984, but family Court was not barred from settlement of the dispute on special oath. In the instant case the petitioner/defendant asked plaintiff to take oath and offered settlement decision on oath by the plaintiff. The subsequent objection of the petitioner that it was violation of Article 163 of Qanun-e-Shahadat Order, 1984 is not tenable." In the case of "Najmuddin v. Mst. Mah-e-Talat and others" (1984 CLC 657) it was observed to the effect that having made an offer for decision on Special Oath and after its acceptance by the opposite side, the party making the offer cannot be allowed to raise objection as to the jurisdiction of the Family Court or to take up the plea that the Special Oath could not be given in matrimonial proceedings. Likewise in the case of Peggy Collin v. Muhammad Ishfaque Malik and 6 others" (PLD 2010 Lah. 48) it was observed to the effect that an offer of the party to the suit whereby he undertakes to be bound by the statement on Oath by the other side, on being accepted by the other side, was in the nature of binding agreement. 11. In the instant case the respondent earlier filed petition under section 25 of the Act for the custody of the minors which was dismissed vide order dated 12.5.2018 in view of the statements recorded on Special Oath. The order was affirmed in appeal which was dismissed by the learned Addl. District Judge vide order dated 09.10.2018. The second application under section 25 of the Act for the custody of the minors on identical allegations was filed on 27.10.2018 i.e. after 17/18 days from the dismissal of the appeal. The respondent was bound by the order of dismissal of the earlier application which was passed in result of an agreement to abide by the statement on Special Oath
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and could not possibly re-agitate the same grounds or facts which would stand concluded by the earlier decision. Additionally, as observed hereinabove, in another suit for maintenance allowance and recovery of dowry articles, respondent No.1 entered into a settlement with the petitioner whereby he undertook not to press for the custody of the minors and 'agreed to a visitation schedule which settlement was reflected in order dated 12.6.2018 of the learned Guardian Judge It has been admitted in his statement by the respondent that the visitation schedule agreed to in the statement was being duly followed and implemented by the petitioner and that the respondent had been availing the visitation arrangement as per agreed schedule for the visitation purposes. Despite that the second petition under section 25 of the Act out of which the instant Constitutional petition stems, was filed without any change in circumstances. The filing of the second petition on the same allegations was obviously impermissible and was rightly dismissed by the learned Guardian Judge. It is correct that the matter of custody of minors or the right of remedy therein cannot be precluded by agreement and that in changed situation welfare of the minors so requires the aggrieved party could move an application for the appropriate relief but in the instant case there was no change in circumstances nor any special reason was supplied or recorded in the subsequent…
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