2015 PLP 116 (CLC)

AFTAB AHMED GORAR, J.

Through this constitutional petition the petitioner has impugned Judgment dated 11-10-2010 passed by learned Vth Additional District Judge, Karachi East whereby he dismissed G&W Appeal No.82 of 2010 filed by the petitioner against the Judgment dated 5-4-2010 passed by learned XXth Family Judge, Karachi East whereby he partly allowed G & W Application No.420 of 2008 filed by respondent No.l. Brief facts of the case are that respondent No.1 Mst.Shabana filed application under section 25 of Guardians and Wards Act stating therein that she was married with respondent Fazlur Rahman on 24-8-1994 at Karachi. The Rukhsati took place on the same day and the marriage was thus duly consummated. Out of the said wedlock five children were born. The petitioner always used to quarrel with her without any justification. Since from the early days of the marriage the petitioner used to insult and assault the respondent on petty house-hold matters and the petitioner was in the habit of giving merciless beatings to her. Despite that, the respondent tried her level best to convince him to fulfil his liabilities and responsibilities but in vain. She prayed for handing over custody of the minors namely Ubaid-ur-Rahman, Uzir-ur-Rahman, Baby Umama, Baby Lubana and Baby Hira. The petitioner contested the matter and filed written statement wherein he mostly denied the allegations levelled by the respondent. He stated that the children are happy with the petitioner and are enjoying good health and getting better education and proper care by the petitioner. He stated that the mother viz. the respondent is not prevented to see the minors at any time, however due to her immoral character, permanent custody of the minors cannot be handed over to her. According to him, the application for custody moved by the respondent is not maintainable as she herself left the house of the petitioner and the allegation of snatching the children is false and concocted. He further asserted that the financial position of the respondent is not good, as such the children could not be properly maintained by her. After framing the issues, recording the evidence and hearing the parties, learned trial court vide Judgment dated 5-4-2010 partly allowed G&W Application and ordered that the custody of male children shall remain with the petitioner whereas the petitioner was directed to handover the custody of minor girls to the respondent with certain tentative arrangement for meeting of both the parties with the children. The petitioner being aggrieved by the said judgment, preferred appeal which was dismissed and the judgment of the trial court was upheld, hence this petition. Learned counsel for the petitioner contended that the judgments of the two courts below suffer from illegality and material irregularity and based on misreading and non-reading of material evidence. He contended that the appellate court erred while holding that the children are being maintained through the funds of zakat and charity. According to him. The petitioner is earning Rs.40.000 per month as rent from his properties and no money of zakat or donation is being spent on the children. He submitted that the respondent has no source of income to maintain the children. He prayed for allowing the petitioner and setting aside the impugned judgments. On the other hand, learned counsel for the respondent while supporting the judgments of the two courts below contended that the impugned judgments are well-reasoned just and proper. He further contended that the constitutional petition against the concurrent findings is not maintainable. He submitted that the evidence adduced by the parties has been properly appreciated by the trial court as well as the appellate court. He further contended that although there is allegation of immoral character against the respondent but the petitioner has failed to produce any material during the course of evidence and the so-called letters filed by the petitioner in the appeal being afterthought and having been filed at belated stage were rightly discarded by the appellate court. He further contended that both the parties are residing in the same locality, therefore, the education of the children will not suffer and even otherwise it is basically the responsibility of the father to support his children even after divorce. He prayed for dismissal of the petition. I have heard learned counsel for the parties and perused the material available on record. The paramount consideration regarding custody of minors is the welfare of the minors. In the instant case respondent No.1 is the real mother of the children. Needless to say that the lap of a mother is a cradle of Almighty Allah and none else is the substitute of a real mother for the minor children. The word "Hizanat" is outcome of the word "Hizan" meaning 'lap of mother'. The contention of petitioner's counsel that respondent No.1 is not in a position to maintain the children properly, therefore she cannot be handed over custody of the minors is devoid of force. The honourable Supreme Court in the case reported in 1978 SCMR 299 held that mere inability to maintain children is no ground for depriving mother of custody of her children. It was further held that overriding, consideration is always welfare of the minor. So far as the plea that the respondent possesses immoral character is concerned, the petitioner has miserably failed to utter even a single word as to with whom she has illicit relation, neither the name of any person is given nor any description is given and nor any instance has been quoted regarding illicit relation during his evidence. Besides, not a single suggestion was put to her during her cross-examination regarding illicit relation or having immoral character. So far as the document titled "Shariat-e-Sulah Nama" wherein one Nazeer has been cited as having illicit terms with the respondent is concerned the writer or witness of the said document were not examined so as to test the authenticity or otherwise of the said document, nor the said document was confronted to the respondent during her cross-examination, as such it has no evidentiary value. In the instant case the female minors have not yet attained puberty, whereas the male children have crossed the age of 7 years, therefore, I do not find any illegality or impropriety in the order of the trial court in ordering that the custody of male children shall remain with the petitioner whereas the custody of female children be handed over to the mother. It is also an admitted position that the petitioner after divorcing respondent No.1, contracted second marriage with a lady who was also divorced and thereafter he has contracted third marriage. No doubt that there is no prohibition upon a male to contract third or even fourth marriage but at the same time one has to keep in mind that a step-mother cannot be in a better position to maintain and take care of the minors vis-a-vis a real mother. In the case reported in 1980 CLC 1802 it was held by the honourable Supreme Court as under:

"Father may render himself unfit for custody of minor child by bringing in a step-mother. Step-mother cannot be any substitute for real mother in rearing up of minor." In another case reported in 1989 SCMR 1277 it was held:

"Father taking second wife and having children from her, not physically and mentally safe in presence of his step-mother if his custody is handed over to his father." Even otherwise concurrent findings of facts given by two courts below cannot be interfered in exercise of the constitutional jurisdiction of this court. In the case of Mst. Farhat Jabeen reported in 2011 SCMR 1073 honourable Supreme Court held:

" .. because interference in the findings of facts concurrently arrived at by the courts, should not be lightly made, merely for the reasons that another conclusion shall be possible drawn on the re-appraisal of the evidence rather interference is restricted to the case of misreading and non-reading of material evidence which has bearing on the fate of the case." Needless to mention that constitutional jurisdiction of this court is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course as to hamper the findings of fact, correctly recorded by the courts below. For the foregoing reasons, I do not find any justification to interfere with the concurrent findings of the courts below. Accordingly the petition being devoid of merits, is dismissed in limine. Consequently, the judgments of the courts below regarding handing over custody of female children to respondent No.1 as well the meeting arrangement are upheld. The petitioner is directed to handover custody of three minor girls to respondent No.1 forthwith. AG/F-8/Sindh Petition dismissed.