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LAW OF INTERIM INJUNCTION IN FAMILY / CUSTODY CASES

Fahad Ahmad Siddiqi Advocate,

It is an admitted proposition of law that in guardianship matters, a
court has to exercise quasi parental jurisdiction in as much as supreme
consideration in such context is welfare of minor before the Court and to achieve
such purpose, courts had unfettered powers. Interim Visitation Schedule is required
to be chalked out on such principles. Contesting parents have inherent right to seek
visitation to the minor, which is a statutory right of the father being a Non
Custodial Parent.
Provisions of Section 5 of the Schedule attached with the Family Courts Act, 1964
are reproduced here to below for the better understanding of the term Visitation
Rights;

5. Custody of children [and the visitation rights of parents to
meet them].

The term ‘Visitation’ has not been defined in either the Guardian & Wards Act
1890 or in the Family Courts
Act 1964, hence we are constrained to resort to its Dictionary meaning. As per
Black’s Law Dictionary, 10 th Edition, “Visitation means a non-custodial parent's
period of access to a child. Visitation right means a non-custodial Parent's, Court
ordered privilege of spending time with a child who is living with another person,
usually the custodial parent. A visitation order means an order establishing
the visiting rights for a non-custodial parent with his children. Although the non-
custodial parent is responsible for the care of the child during visits, visitation
differs from custody because non-custodial parent and child do not live together as
a family unit. Hence the word “Parents” is categorically mentioned in Section 5 of
the Schedule attached with the Family Courts Act 1964, allows grant of visitation
rights to not only the father but also the grandparents of the minor.
The Learned presiding judicial Officers of the Appellate Courts have developed a
tendency to mostly allow ad interim injunction in Appeals merely on the basis of
an affidavit of the Stay Application attached with the Appeal filed against the grant
of Visitation Rights by the Guardian Courts under the mistaken notion that the
appellate jurisdiction they are exercising under the provisions of Section 14 of the
Family Courts Act is a substitute and an alternate to Civil Jurisdiction they exercise
under the provisions of Order XXXIX, Rule 1 & 2 of the Code of Civil Procedure.
Failure on the part of the Learned Appellate Courts to understand and appreciate
the difference between exercising general jurisdiction and the quasi parental

jurisdiction conferred upon them by virtue of their office is practically playing
havoc with the litigants in general and the minor children in particular.
Before grant of an ad interim injunction a Learned Appellate Courts is required to
appreciate that it is a common practice among couples to use kids as pawns in the
game of emotional chess. It amounts to absolutely irresponsible parenting to scar
children emotionally post separation. In due course the parents move on in their
lives and onto another partners but children carry the trauma of being manipulated
and torn apart emotionally, all their lives. In my legal experience I have seen a
large number of these kids suffering from personality problems, conduct, disorder,
and substance abuse, criminal and anti social traits etc and all just because of
appropriate contact denial between the Non Custodial Parents with their children
involved in Child Custody Litigation in the garb of procedural technicalities.
Scores of Appeals against Visitation Orders passed by the Guardian Courts are
pending adjudication in almost each Appellate Court and hundreds of such Appeals
are pending adjudication throughout the province of Punjab in Guardian Appellate
Courts even for the last more than 2-3 years. The core reason in majority of such
Appeals is only one, and that is the Learned Appellate Courts has granted Stay
Orders/ Interim Injunctions, merely on the presentation of an affidavit by the
Appellant. In almost all such Appeals, multiple dates have also been issued to the
Appellants and a number of Applications for vacations of Stay/ Interim Injunctions
has been filed but to no avail.
The instant Article relates to the Law of Interim Injunction in Family
Jurisprudence. It is an issue which has not yet been addressed by any of the Courts
of appropriate jurisdiction except that mere notices and summons are issued one
after the other. It is to be noted that the failure of the Appellate Courts to ensure
compliance of their Orders has resulted in gross miscarriage of justice to not only
the Non Custodial Parents but also, the minor children are left alone to bear the
brunt of the lax laws as well as the failure on the part of the Appellate Courts to
ensure compliance of their orders thereof.
Our hierarchy of Courts in Family Jurisdiction are expected to exercise a quasi
parental jurisdiction and to act a Locus Parentis, deal with the delicate matters
touching the rights of the people , particularly the deprived minor children and
their Non Custodial Parents, instead of dealing with their such rights of Access and
Visitation in a mechanical manner. There is a need to adopt a new line of action to
start with the creation of a society, which is dreamed of as a social welfare State.
Grant of interim injunctions against Visitation Rights of minor merely on the
affidavits of the Appellants without appreciation of delicacies of child psychology
serves no useful purpose to the Custodial side of Parents involved in child custody

litigation nor the needy minors rather their miseries are enhanced. This sorry state
of affairs needs to be addressed by the judiciary at large.
That the relief of injunction is a discretionary and an equitable relief which a
party to litigation cannot claim as a matter of right and he who seeks equity
must come to the court with clean hands. Before grant of such relief
conscience of the court has to be satisfied that the party seeking such relief
has not acted inequitably. And the party seeking interim injunction must
also satisfy the Court that an interference is necessary to protect it from the
species of injury which the Court called “irreparable loss” before the legal
right could be established. For adjudication of the question of granting or
withholding preventive equitable relief , an injury is set to be irreparable
because no legal remedy furnish full compensation for it or there was no
adequate redress for such injury or there existed inherent ineffectiveness of
legal remedy for such injury. Reliance is placed at 2019 YLR 815 Karachi
It is therefore observed to be the need of the hour that some serious steps should be
initiated by our superior judiciary in this regard and to curb the abuse of process of
law being carried out in the name of welfare of minor shall be brought to a halt.
Special education and workshops are required to be conducted to cause awareness
for the Learned Guardian Judges that they are obliged to pass speaking orders
while acting as a Judge and while curtailing Civil Rights of Non Custodial Parents
(fathers mostly) they must assign valid reasons as to why a minor should be
produced in a court premises for the purposes of meeting his Non Custodial Parent,
especially when every case is required to be decided on its own facts.
It is further most humbly suggested that the Learned Judges appointed as Guardian
Judges, should be given special training to the effect that the principles of Natural
Justice are fully applicable in Guardianship Proceedings as well, if an accused is
the most favorite child of a criminal law than a Non Custodial Father shares almost
the similar status in Child Custody litigation, hence he should be considered a
human being at least if not a most favorite child of law and must be given basic
amenities, he is entitled under the Constitution of Islamic Republic of Pakistan,
That the Honourable Chief Justice of the High Court is requested through this
Article that please take notice of the helm of affairs being carried out in the
Guardian / Family Appellate Courts and a direction be issued to all the Learned
Judges functioning within the supervision of this Hon’ble Court, to ensure
protection of Fundamental Rights of Fair Trial, Right of Privacy and Dignity of
Man, Right of Fair Trial and other rights of children from broken families and of
the non-custodian parents, by announcing a reasonable at home “MINIMUM
STANDARD” visitation schedule right from the start of the Child Custody
Litigation, in the similar manner as that of the fixation of interim maintenance

allowance under the provision of Family Courts Act 1964. This relief of “minimum
at home visitation schedule” should be available to all non-custodial parents
without discrimination from the very beginning of the trial, at least during the
interim stage till the final disposal of litigation pending adjudication before the
Learned Guardian / Family Judges respectively.
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