Akhtar Masood (Petitioner)
Mrs. Bilkis Jahan Ferdous (Respondent)
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Judgment : December 12, 1996.
The Guardians and Wards Act, 1890 (VIII of 1890), Section 12(1)
A father cannot be denied access to his minor son while in the custody of the mother. The Petitioner has been permitted to apply to the Family Court for making suitable arrangement to visit his son on regular basis when the petitioner is stationed at Dhaka considering convenience of both the parties………(4)
Md. Abdur Rashid, Advocate, instructed by Md. Ataul Huq Advocate-on-Record-For the Petitioner.
Not represented— The Respondent.
Civil Petition for Leave to Appeal No. 389 of 1996.
Mustafa Kamal J.- This petition for leave to appeal by the plaintiff-petitioner is from the judgment and order of a learned Single Bench of the High Court Division dated 20-5-96 rejecting summarily the petitioner’s revisional application Civil Order No. 1900 of 1996.
2. The plaintiff filed Case No. 171 of 1994 under section 8 of the Guardians and Wards Act, 1890 in the Court of 1st Assistant Judge and Family Court Dhaka. He filed an application under section 12(1) of the said Act for visitation of his son aged nearly 6 years now at his residence for 6 hours every Friday. The 1st Court of Assistant Judge and Family Court Dhaka rejected his application by order dated 18-9-94 on appeal. Miscellaneous Family Appeal No. 267 of 1994, the 5th Court of Subordinate Judge, Dhaka dismissed the appeal by judgment and order dated 24-4-96. The petitioner’s revisional application was also dismissed by the High Court Division as already noticed.
3. The suit is for custody of the plaintiff-petitioner’s son and was filed in the Family Court under section 25 read with section 5(c) of the Family Courts Ordinance. 1985. The suit is pending in the Family Court since 1994 and the petitioner had a chance to see his growing son only twice. In the meanwhile he is being reared up at the residence of his maternal grandfather at Mohammadpur where he is residing with his mother, the respondent, a Government servant. The couple has also been divorced in 1993. The petitioner’s prayer for visitation was refused by the High Court Division on the ground that in view of the strained relation between husband and wife and pending litigation between them over a number of matters the prayer of the petitioner if allowed will lead to complications and the petitioner failed to suggest any other alternative method of visiting his son.
4. In all fairness a father cannot be denied access to his minor son while in the custody of the mother. If the petitioner’s prayer for visitation on the terms prayed for by him is not acceptable to the Family Court there are other methods of allowing the petitioner to see his son. Especially when the suit is pending for the last 2 years and when it does not appear that the trial of the suit is about to take place it will not be proper to deny the petitioner to see his son for all time to come till the suit is decided. As and when the petitioner is stationed at Dhaka he will be at liberty to apply to the Family Court for making a suitable arrangement to visit his son on regular basis and it will be for the Family Court taking into account the convenience and inconvenience of both the petitioner and the respondent to work out an arrangement so that the petitioner gets a regular access to his son during pendency of the suit.
The petition is dismissed with the above observations.
Source : 50 DLR (AD) (1998) 145