2014 PLP 1374 (YLR)

SYED IFTIKHAR HUSSAIN SHAH, J.

Shahbaz Ahmad petitioner has assailed the legality of judgment dated 11-7-2011 passed by the learned District Judge, Renala Khurd whereby an appeal preferred by the present petitioner against order and decree dated 22-2-2011 passed by the learned Guardian Judge, Renala Khurd was dismissed.

2. Succinctly, the facts of the case are that the petitioner being father of Kainat Bibi, who at presently residing with her mother Mst. Rubina Kausar respondent No.2, made an application for seeking her custody on the ground that the mother of the minor has contracted second marriage with one Falak Sher, who is not related to the minor within the prohibited degree and the welfare of the minor lies in handing over her custody to the petitioner, her father. Respondent No.2 Mst. Rubina Kausar, mother of the minor, opposed the said application and from the divergent pleadings of the parties, following issues were framed:- "ISSUES No.1. Whether the applicant has got no cause of action to file the instant petition? OPR No.2. Whether the applicant can take welfare of the minor in a better way as compared to the respondent? OPA No.3. Relief." Learned Judge Family Court, after recording of evidence and hearing the parties, dismissed the application vide judgment dated 22-2-2011. The petitioner being aggrieved of the said judgment and decree, preferred an appeal before the learned Addl. District Judge, Renala Khurd which was also dismissed vide judgment and decree dated 11-7-2011. Hence, this writ petition.

3. Today no one is present on behalf of respondent No.2 in spite of the fact that the name of learned counsel for respondent No.2 reflects in the cause list, therefore, respondent No.2 is proceeded against ex parte.

4. Learned counsel for the petitioner has contended that the mother of the minor has contracted second marriage with a person who does not fall within the prohibited degree and welfare of the minor is also not being looked after properly and she is also not being educated by respondent No.2, therefore, welfare of the minor lies in handing over her custody to the petitioner, her real father but both the learned Courts below have not appreciated the evidence on record properly and have dismissed the application as well as appeal of the petitioner erroneously. Relies on "Mst. Ayisha Bibi v. Safdar Ali Shah and another (2005 CLC 894 (Lahore)", "Mst. Shumaila Akhtar and 2 others v. Abdur Rauf and 2 others (2004 YLR 1913 (Lahore))", "Mst. Amir Ali and another v. Ahmad Ali (1998 CLC 846 (Lahore)", "Faiz Bakhsh v. Mst. Sakina (1980 CLC 1989 (Baghdad-ul-Jadid))", "Mst. Nazir v. Hafiz Ghulam Mustafa and others (1981 SCMR 200)", "Mst. Ruqayya Bibi v. Noor Akbar and 3 others (PLJ 1984 Lahore 322)", and "Mst. Parveen Akhtar v. Muhammad Ashraf (1986 SCMR 1944)".

5. I have heard learned counsel for the petitioner and have perused the available record.

6. It is an admitted fact that both petitioner as well as respondent No.2 has contracted second marriage. Learned counsel for the petitioner has alleged that respondent No.2 has contracted marriage with a person not related to the minor within the prohibited degree, therefore, he has got no interest in the proper up-bringing of the minor. But both the learned Courts below have committed material illegality while refusing the custody of the minor to the present petitioner.

7. In case titled "Mst. Ayisha Bibi v. Safdar Ali Shah and another (2005 CLC 894 (Lahore))" the custody of the minor was granted to the father as the father had got no off-shoot from his second wife and it was considered that a woman without any child would not give step-mother's treatment to the minor but in this case admittedly the petitioner has got two daughters from his second wife.

8. In case titled "Faiz Bakhsh v. Nist. Sakina (1980 CLC 1989 [Baghdad-ul-Jadid])" the mother was not entitled to the custody of the minor as she had married with a stranger but in this case the petitioner has failed to produce any concrete evidence that respondent No.2 has contracted marriage with a stranger. Shehbaz Ahmad while appearing as AW-1 deposed that the husband of respondent No.2 does not belong to non-brotherhood. Muhammad Ashraf while appearing as AW-2 deposed that respondent No.2 has contracted second marriage in the Brotherhood and at the same time he deposed that she married with a person not from brotherhood and that in the presence of second husband, the custody of the minor should be with the petitioner. The petitioner has failed to establish on record that the second husband of respondent No.2 belongs to non-brotherhood or is not related to the minor within the prohibitory degree. Hence, the facts and circumstances of the aforementioned case are not applicable to the facts and circumstances, of the present case. Similarly the facts and circumstances of cases titled "Mst. Amir Ali and another v. Ahmad Ali (1998 CLC 846 (Lahore))", "Mst. Ruqayya Bibi v. Noor Akbar and 3 others (PLJ 1984 Lahore 322)", and "Mst. Shumaila Akhtar and 2 others v. Abdur Rauf and 2 others (2004 YLR 1913) (Lahore)" are not directly applicable to the facts and circumstances of the present case.

9. Under Paragraph No.352 of the Mahomendan Law, the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right of continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.

10. Under Paragraph No.354 of the Mahomendan Law, A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody

(i) if she marries a person not related to the child within prohibited decrees, a stranger, but the right revives on the dissolution of marriage by death or divorce or, (ii) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or, (iii) if she is leading an immoral life, as where she is a prostitute or, (iv) if she neglects to take proper care of the child. In the instant case respondent No.2, mother of the minor, has contracted second marriage. The present petitioner has also contracted second marriage and has got two daughters from his second wife. There is no concrete evidence on record that the second husband of respondent No.2, mother of the child is not from the brotherhood of the minor and does not fall with the prohibited degree. Respondent No.2 while appearing as RW-1 stated that the minor enjoys good health and she is being brought up and educated properly. She further deposed that she had got admitted the minor in an English-medium School/Islamic Public 4/G.D. She has not been cross-examined on this point. Respondent No.2 has also placed on record the copy of school certificate of respondent No.2 in support of her contention.

11. The petitioner has failed to establish on record that respondent No.2 has married with a stranger. The minor is residing with respondent since her birth and she is being educated in an English medium school. The petitioner after divorcing respondent No.2 admittedly contracted second marriage and he has also got two daughters from the second wedlock. The step-mother can never be a substitute for real mother. Both the learned Courts below after careful appraisal of evidence on record have concluded that the welfare of the minors lies with their mother, respondent No.2.

12. It is settled proposition of law that this Court does not interfere with the findings of facts arrived by the primary Courts when it is satisfied that the findings of both the learned Courts below are reasonable and were not arrived at by disregarding any of the provisions of law or any accepted principle concerning appreciation of evidence. Learned counsel for the petitioner could not point out that the findings of fact recorded by both the learned Courts below, on the face of it, are against evidence or were patently improper or perverse that to accept it could amount to perpetuating a grave miscarriage of justice. The constitutional jurisdiction is ordinarily discretionary in character. He who seeks equity must come with clean hands. The concurrent findings of both the learned Courts below on the question of fact cannot be interfered by this Court in view of the latest pronouncement of Hon'ble Supreme Court in case titled "Waqar Haider Butt v. Judge Family Court and others 2009 SCMR 1243 (Supreme Court of Pakistan)". No infirmity or illegality has been pointed out in both the impugned judgments of the learned Courts below, which are in accordance with law and the same are hereby maintained. In view of above, the petition in hand is without any merits, the same is hereby dismissed. AG/S-12/L Petition dismissed.