IN
THE COURT OF DISTRICT & SESSIONS
JUDGE
FAMILY APPEAL NO. /20
,
VERSUS
1.
2. Ist Family Judge
(South) ------- RESPONDENTS
APPEAL UNDER SECTION 14 OF THE
MUSLIM
FAMILY LAW ORDINANCE
Being aggrieved and dissatisfied with the order dated ...... and order dated ...... passed by
learned Ist Family Judge Karachi (South)
in G&W No., the appellant prefers this appeal on the following facts
and grounds:-
Copies of the impugned orders are filed as Annexures A
and B.
FACTS
1. That
the Respondents filed G&W No.
against the Appellant u/s 25 of
the G&W Act, 1980 on the false and
flimsy grounds praying for custody of
the minor Ayla Shafqat and that the
Appellant may be forbidden from outside the jurisdiction of this Court with the minor and the Appellant be
directed to surrender all travel documents which she holds on behalf of the
minor.
2. That the Appellant filed written
statement and denied the allegations of the Respondent and stated that the Respondent was not entitled for permanent
custody of the minor and the petitioner is entitled for the permanent custody
of the minor specifically on the ground that the Petitioner is entitled to the
custody of the minor on the ground that
she being mother is entitled under the Law of Hizanat the custody of the minor.
Copy
of G&W No. and written statement are filed as Annexures C & D.
3. That the Respondent also
filed an application under Section 12 of the G&W Act, 1980, without any
affidavit showing the reason for custody of the minor. It is submitted that on 3.4.2010 the Respondent No.2 passed the
following order :
“by meeting is allowed from 11 to 12 at the
residence of Respondent No.1 on alternate Saturday”
4. That it is pertinent to
mention that the above said exparte order was passed without giving an opportunity
of hearing to the Appellant. The learned Respondent No.1 failed to appreciate
while passing the interim order that
minor Ayla is only two years old and it is very inconvenient, against
her welfare and very improper to traumatize her by moving her from one
place to another in such a manner. It is further submitted that due to the conduct of the Respondent No.1, it
will be against the welfare of the minor to hand over her custody to him. It is
further submitted that it is only the
appellant, who can understand the feelings and wishes of her baby and
the she is the only source of enjoyment,
sense of security and happiness
for the minor at this stage of her life.
5.
That it was
well within the knowledge of the Respondent No.1 that the Minor baby
Ayla was suffering from Eczema as such she needed special care which could
only be provided by the Appellant. Baby Alya also has special
dietary restrictions essential to her health and welfare and which can be ensured
in the care of the appellant.
5. That I say
that before divorce the Petitioner used to talk and had consistent
interaction with stranger girls. This
conduct is not expected from a decent/reasonable married person. Such
atmosphere is still prevailing in the house of the petitioner which is not
conducive for the minor and which will
badly affect the minor’s upbringing and is against her welfare.
6. That on
26.8.2010 the appellant filed counter affidavit to the application u/s 12 of
the G&W Act and the learned Respondent No.2 passed the order that the
application u/s 12 has already been
disposed of on 3.4.2010. Hence this appeal on the following amongst other
grounds:-
Copy of the Counter affidavit
is filed as Annexure-E.
GROUNDS
A.
That the order
dated ..... was not a final order which was in fact interim order.
B.
That the order dated ..... was passed without
giving an opportunity of hearing to the
Appellant as such the is against the principle of audi alterm partem and liable
to be set aside.
C.
That the learned Respondent No.1 failed to appreciate
that the custody of the minor since
birth is with the Appellant and she have all responsibility to see and take
care of the minor, therefore, handing over the custody of the minor to the Respondent was not only dangerous but also
against the health and welfare of the minor.
D.
That the learned respondent No.1 failed to appreciate
that the minor is living with the Appellant and her other family members in
a decent and conducive atmosphere, which is in the best interest of the minor.
After divorcing the Appellant callously, arbitrarily and without any rhyme or
reason the Respondent has now started to victimize and pressurize the appellant
by such applications. The Respondent is simply playing with the emotions which
a mother has for her child. He was abusing process of the Court.
E.
That learned Respondent No.2 wrongly came to conclusion that the order passed on
application dated .... is final order. It is submitted that after going
through the said order it is clear that the same was an interim order as no reasons
and grounds were mentioned while passing
the same.
F.
That the
Appellant filed counter affidavit to the application under Section 12 of the
G&W Act and the same was to be heard on merits after hearing both the
parties at length but the learned Respondent No.2 on..... passed the order
that the said application was already disposed of, which is illegal, unlawful
and against the principle of natural justice.
G.
That the impugned orders are not sustainable in law
and liable to be set aside.
H.
That the learned Respondent No.2 failed to consider
that the Respondent No.1 might remove the minor from the jurisdiction of this
Hon’ble Court because at the time of passing the impugned order divorce was not
effected but now it has been effected and there is every likelihood of removing
the child by the Respondent No.2.
I.
That the
appellant craves leave to urge further additional grounds at the time of
hearing.
PRAYER
It is, therefore, prayed that this Hon’ble Court may be pleased
to admit the appeal, call for the R&P of G&W No. from the
Respondent No.2 , hear the same and set aside the orders dated ....... and.....
Dated: 8.20 APPELLANT
ADVOCATE
FOR THE APPELLANT
IN
THE COURT OF DISTRICT & SESSIONS
JUDGE
FAMILY APPEAL NO. /20
---------------- APPELLANT
VERSUS
-------- RESPONDENTS
AFFIDAVIT
I, Maryam Tariq d/o Mir Tariq Yaqoob, Muslim, Adult, resident of House No.7, 20th Central Street, Phase-II DHA, Karachi, do hereby state on oath as under:-
1. That I am the appellant in the above matter as such am fully conversant with the facts of the same.
2. That the accompanying appeal has been drafted and filed under my instructions and its contents may be treated as a part of this affidavit.
3. That whatever is stated above is true and correct to the best of my knowledge and belief.
Dated: 8.20 DEPONENT
The deponent is identified by me.
ADVOCATE
Stated on oath before me this day of August 20. The deponent is identified by Mr. , Ghulam Abbas Advocate, who is personally known to me.
COMMISSIONER FOR TAKING AFFIDAVITS
IN
THE COURT OF DISTRICT & SESSIONS
JUDGE
FAMILY APPEAL NO. /20
---------------- APPELLANT
VERSUS
-------- RESPONDENTS
For the
reasons disclosed in the memo of appeal and accompanying affidavit it is prayed
on behalf of the appellant that this Hon’ble Court may be pleased to stay
operation of the impugned orders dated .... and .... till the disposal
of the appeal.
Ad- interim
orders are respectfully solicited.
Dated: 8.20 ADVOCATE FOR APPELLANT
IN
THE COURT OF DISTRICT & SESSIONS
JUDGE
FAMILY APPEAL NO. /20
VERSUS
-------- RESPONDENTS
AFFIDAVIT
I, .............................................................., Karachi, do hereby state on oath as under:-
1. That
I am the appellant in the above matter as such am fully conversant with
the facts of the same.
2. That the accompanying application for
stay has been drafted and filed under my
instructions and its contents may be treated as a part of this affidavit.
3. That the
custody of the minor since birth is with me and I have all responsibility to
see and take care of the minor, therefore, handing over the custody of the
minor to the Respondent was not only dangerous but also
against the health and welfare of the minor.
4. That the
minor is living with me and my other
family members in a decent and conducive atmosphere, which is in the best
interest of the minor. After divorcing me callously, arbitrarily and without
any rhyme or reason the Respondent has now started to victimize and pressurize
me and the minor with malfaide
intention.. The Respondent is simply playing with the emotions which a mother
has for her child. He was abusing process of the Court.
5. That
I have good case and balance of convenience lies in my favour.
6. That unless the application is granted,
I as well as the minor shall be
seriously prejudiced.
7. That
whatever is stated above is true and
correct to the best of my knowledge and belief.
Dated: 8.20 DEPONENT
The deponent is identified by me.
ADVOCATE
Stated on oath before me
this day of August 20. The
deponent is identified by Mr. Ghulam Abbas, Advocate, who is personally known
to me.
COMMISSIONER FOR TAKING AFFIDAVITS
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