2000 PLP 108 (CLC)

‑‑‑‑ & 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Custody of minors‑‑‑Order of Appellate Court‑‑‑Interference in Constitutional jurisdiction‑‑‑Where no misreading of record or error of law was shown, no ground was made out for interference in Constitutional jurisdiction by High Court. Ch. Muhammad Ashraf Azeem for Petitioner. Mian Subah Sadiq Wattoo for Respondent. Date of hearing: 6th October, 1998. Petitioner was married to late Mst. Shahnaz Begum daughter of respondent No.3 (Muhammad Yousaf). Out of the wed‑lock one son and one daughter, namely, Zahid Iqbal and Farzana Iqbal were born. It was claimed in the petition that the minor son was aged three years while the daughter was aged one year. Mst. Shahnaz Begum died on 20‑5‑1995 at Civil Hospital Sargodha and the minors are living with their maternal‑grandmother and maternal -grandfather.

2. Petitioner filed an application for the custody of minors which was allowed by the learned Guardian Judge on 10‑6‑1996. In appeal the judgment was set aside and the petition filed by the petitioner was dismissed. Resultantly the custody of the minors with their maternal grand parents was maintained. Against this order, the present petition has been filed.

3. Learned counsel for the petitioner contended that the maternal grand parents were poor people, living in the village and were unable to impart education of the minors. It was added that the learned appellate Court wrongly set aside the order of the learned Guardian Judge/Family Court.

4. In the course of hearing of the petition, learned counsel for the petitioner has admitted that presently, the minor daughter is aged four years while the minor son is aged six years and they are living with their maternal grandmother and maternal‑grandfather. The petitioner present in Court was asked about his own education who submitted that he was Matriculate and was employed in the Army. On being further asked, the petitioner admitted that none of his brother was educated person and the only family living in his house was his old mother of aged 80 years, about whose physical condition, the parties are at issue as, according to the respondents, she is blind while the petitioner maintains that she does not suffer from blindness. The petitioner was asked as to whether he has ever paid maintenance to the minors, when he replied that no maintenance was paid but he was willing to pay.

5. From the evidence on record and also the stand taken by the petitioner in the course of hearing, it is crystal clear that the petitioner had never maintained the minors, the minors do not recognize him as has been observed by the learned Additional District Judge in the course of hearing of the appeal the minors are living with their maternal‑grandparents since birth and are being brought up and looked after by the maternal grandmother as well as maternal grandfather. The minors are fully adjusted with their maternal‑grandparents. As against this, the petitioner is employed in the Army, who has no time to look after the kids while the only female member in his house is about 80 years old and practically unable to take care of the minors. To disturb the custody of the minors, at this stage, when they have already lost their, mother, will not be in their interest and welfare as in such eventuality, they will be deprived of the love and affection being received from their maternal‑garandparents while the father will have no time to think about or care about their welfare. The petitioner, even in the course .of hearing of this petition does not deny that he is engaged in a service and it will not be possible for him to remain all the time available for looking after his children. The argument that being a father, the petitioner should be allowed custody, cannot prevail, as the welfare of the minor being the supreme consideration cannot be ignored. In a situation where the father never bothered about the maintenance of the minor's;' never cared to meet them during last four years, where the father has no time to look after the minors, it will be dangerous to disturb the present custody of the minors and to place them at the ~ mercy of an old lady who is unable to care of herself.

6. Under the personal law, after the death of the mother, the maternal‑grandmother can legitimately claim custody of the minors.

7. In Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593, it was ruled that the right of father to claim custody of children over seven years age was not absolute and paramount consideration in determining custody of minor would be the interest and welfare of the minor and not the interest of the parents. It was further observed that where the minor was admittedly under the care of maternal aunt right from the death of his mother while the father neglected him throughout, then the mere fact that the minor had attained the age of seven years would not ipso facto entitle the father to the custody of minor as of right.

8. In the present case too, as noted supra, the minors are throughout looked after, either by the mother or after her demise, by the maternal grand parents and the conduct of the petitioner is that he has failed to pay any maintenance to the minors. In this scenario the learned Additional District Judge did not commit any illegality or error of jurisdiction in directing that the present custody of the minors be not disturbed.

9. The petitioner has not been able to show any misreading of the record or error of law in the impugned order, no ground is made out for interference in C Constitutional jurisdiction. The petition is, therefore, dismissed, being without merit.

10. Since the petitioner as a father and has a right to meet the minors, therefore, it is directed that respondent No.4 shall allow meeting of minors to the petitioner in the Court of Guardian Judge, on every first and last Monday of each calendar month. For this purpose the minors will be produced in the Court of Guardian Judge where the petitioner will be allowed meeting with the minors during the Court hours. The petitioner will not be allowed to take the minors out of the Court premises. This arrangement will continue till the attainment of majority/puberty of the minors. Q.M.H./M.A.K./M‑882/L Petition dismissed.