2015 PLP 1260 (CLC)

ATIR MAHMOOD, J.

Brief facts of the case as narrated in this writ petition are that the petitioner got married with the respondent in the year 1999 and out of this wedlock two daughters namely Mst. Sidra and Mst. Iqra were born. Thereafter, the respondent divorced the petitioner. Both the daughters were staying with the petitioner in good atmosphere and got proper education. Respondent No.1 forcibly took his daughter namely Mst. Iqra from her school and did not return her to the petitioner. The petitioner repeatedly asked the respondent through a Panchait, to return the minor daughter Iqra but the respondent flatly refused to hand over the custody of the minor Iqra to the petitioner. Thereafter, the petitioner filed an application for custody of the minor namely Mst. Iqra before the Judge Family Court, Tandalianwala and the learned Judge Family Court, Tandalianwala dismissed the application of the petitioner vide impugned judgment dated 16-4-2012. Whereas respondent No.1 also filed an application for custody of minor namely Mst. Sidra before the Judge Family Court, Tandalianwala. The learned Judge Family Court also dismissed the application of respondent No.1 vide judgment dated 16-4-2012. Feeling aggrieved by the judgments of the learned Judge Family Court, Tandlianwala both the parties filed their separate appeals before the learned Additional District Judge, Tandalianwala and the learned appellate Court vide impugned judgment dated 31-10-2012 dismissed the appeal of the petitioner as well as respondent No.1. However, the learned appellate Court observed that the learned Guardian Judge/learned trial Court shall arrange fortnightly schedule of meeting of the daughters namely Mst. Iqra and Mst. Sidra with their parents and also for Eid holidays, winter and summer vacations. Hence this writ petition.

2. It is contended by the learned counsel for the petitioner that the learned courts below have failed to apply their judicious mind while passing the impugned judgments; that respondent No.1 had contracted second marriage and it would be harsh for the minor daughter if her custody remains with the father leaving her at the mercy of step mother in presence of her real mother who can properly maintain the minor; that the learned courts below have not taken into consideration the evidence led by the petitioner; that the minor is a girl and in such situation she requires more love and affection of her real mother. He has relied upon the case law cited as Tahira Bibi v. Muhammad Saeed and another (2009 MLD 33) and Muhammad Ashraf v. Mst. Farzana Bibi (1997 MLD 520).

3. On the other hand, learned counsel for the respondent has supported the judgments of the courts below by submitting that the petitioner herself left the minor with the respondent and the minor has developed love and affection with her father as well as her step mother and there is nothing in evidence which could disentitle the respondent from having the custody of the minor.

4. After hearing the parties and perusal of the record, the point for consideration before this Court is as to whether both the courts below have taken into consideration the welfare of the minor while dismissing the application for custody of the minor, filed by the present petitioner.

5. Admittedly, from the wedlock of the parties two daughters namely Mst. Iqra and Sidra were born. As per contents of the petition for custody of the minor, two months prior to filing the same the minor Mst. Iqra was taken away from the school by the respondent and then her custody was not restored to the present petitioner. Whereas, in rebuttal, it was averred that the petitioner herself left the minor with his father and the other minor namely Mst. Sidra was taken away by the petitioner along with her at the time of Talaq on 21-1-2011. After framing of the issues, the parties led their respective evidence. The evidence of the petitioner in the shape of affidavits went un-rebutted as the respondent did not cross-examine the petitioner or her witnesses. In rebuttal, the respondent himself appeared as RW-1 and produced Ijaz Ahmad and Muhammad Akram as RW-2 and RW-3 respectively. During cross-examination, the respondent admitted that after about 9/10 months of dispute with the petitioner he contracted second marriage. He also admitted that the petitioner has not contracted second marriage, however, he denied the suggestion that the petitioner can better look after the minor daughter. RW-2 Ijaz Ahmad while filing his affidavit (Exh.R-2) deposed that minor Mst. Iqra aged about 10 years was living with the respondent and that there is a very little distance between the houses of the parties. During cross-examination, he stated that the dispute between the parties arose about one year ago and the respondent contracted second marriage about 6/7 months back. RW-3 Muhammad Akram while filing his affidavit deposed that the minor did not like the petitioner (her mother) and cannot live without respondent (her father). During cross-examination, he stated that the dispute between the parties arose due to the reason that the petitioner did not want to reside along with the respondent. He stated that the respondent himself divorced the petitioner. After recording the evidence, the learned trial Court vide impugned judgment observed in the following manner:

"In this particular case, the minor girl is 11 years old and presently living with her father and step mother and her real mother filed this application to have her custody. The contesting matter before me is not that who has superior right to have the custody of the child but actually with whom welfare of the child can best be protected and secured. To entertain this important question I have examined the child Iqra on oath before me. She was a healthy girl who shows a clear understanding of what was she up to and what was she saying and what does it mean. She testifies the following:

The most notable fact about the statement of the child was that the learned counsel for the applicant, who was present at that time, did not cross-examine her. This implies to safely presume that the statement was not pampered and it adds further weightage to the statement of the minor girl. (Underline is mine) The learned trial Court further observed as under:

"The minor Iqra appeared before the Court on 2-6-2011 and her brilliant elect to live with the respondent is borne out from the interim order and its relevant portion is reproduced as under:-- "Arguments on petitioner's application for interim custody of the minor till the decision of this petition, heard file, perused. The minor was asked to sit with her mother but she instead of going to her started crying badly which shows that she is not willing to even sit with her mother despite of the fact that both the parties live in the same street of the same village." (Underline is mine) Perusal of the above referred paragraphs clearly shows that the learned trial Court mainly emphasized upon the statement of the minor, who is 11 years of age. The learned appellate Court also followed the judgment of the learned trial Court in almost similar terms. After perusal of the judgments of the courts below I have no doubt in my mind that both the courts below have committed gross illegalities while relying upon the statement of the minor who was hardly 11 years of age and her statement was recorded on Oath. The learned trial Court was not competent to record the statement of a minor on Oath who was not a witness and hardly in a position to appreciate the legal implications. Furthermore, the observation of the trial Court that the minor was not cross-examined by the learned counsel for the petitioner is also unwarranted. The minor was neither a witness nor she could be cross-examined by the counsel. Perusal of the statement given by the minor recorded by the trial Court is reflective of the fact that the minor was mentally poisoned against her real mother. Her conduct also shows that she was not mentally mature as when she was directed to sit along with her mother, as above referred in the impugned judgment, she reacted strongly by crying. In my view, had she been mentally mature and able to make a reasonable preference she might had opted to refuse to sit with her mother or to talk her. Poisoning the mind of the minor against her mother or father, in itself is a biggest disqualification to retain the custody of a minor.

6. There is yet another aspect of the matter that one minor namely Mst. Sidra is residing with the present petitioner for whose custody the respondent filed an application under 25 of the Guardians and Wards Act. The said application filed by the respondent was dismissed by the learned trial Court as well as by the appellate Court at the same time when the present petition as well as appeal filed by the present petitioner was dismissed. The respondent did not assail the judgments of the said application which has attained finality. It is noted with concern that while dismissing the application of the respondent the learned trial Court observed in the following manner:

"As it is above discussed that both the parties have only two daughters, out of them Mst. Iqra is living with the appellant and Mst. Sidra minor is living with her mother since separation of the parties, so, in these circumstances, right of the appellant to claim the custody of Mst. Sidra minor is not an absolute right and welfare of the minor is paramount consideration in such like case. That she is also affiliated with her mother. That there is no substitute of love and affection bestowed by her on the minor. Therefore, it will be prejudicial to the welfare of Mst. Sidra to hand over her custody to the appellant." Bare reading of the above referred observation made by the learned trial Court makes it abundantly clear that the Court itself has admitted that no one can be a better guardian and custodian of a minor, that too a female, than the real mother.

7. As remains the finding of the learned appellate Court that the petitioner is residing in a Chak No.407/GB Tehsil Tandalianwala, away from city is also misconceived as both, petitioner as well as respondent are residence of the same vicinity which is evident not only from the pleadings of the parties but also from the evidence led by respondent himself, therefore, the studies of the minor will not be disturbed. Further more, the better financial status of a father does not give him any preference over the mother. By all stretch of imaginations, it is the sole responsibility of the father to cater the needs of his children, irrespective of their place of residence or custody. I am convinced that the judgments of both the courts below lack judicial wisdom.

8. Since the judgments of the courts below in the application filed by the respondent for custody of the other minor namely Mst. Sidra have attained finality whereas the petitioner, asserting her right as real mother of the minor Iqra is strongly agitating against the judgments of the courts below. Therefore, I have come to an irresistible conclusion that both the Courts below have committed a grave miscarriage of justice as both the judgments suffers from misreading and non-reading of evidence as well are classic example of the failure of the application of judicious mind.

9. It is also observed that both the courts below while dismissing the application of the petitioner has ignored the fact that the right of togetherness of children is a well recognized right and the minor children cannot be bifurcated and they cannot be treated as the property of a mother or a father. Their welfare is to be taken into consideration as the top most priority, sentiments of the parents or their wishes are of very little importance. In a judgment of this Court reported as Muhammad Ashraf v. Mst. Farzana Bibi (1997 MLD 520) it has been held as under:

"I have carefully perused the judgment of the learned Guardian Judge. While giving one minor to the mother and other to father the learned Guardian Judge has divided the custody of both minors. Being a Court enjoying loco parenti jurisdiction each Court has to strictly scrutinize the facts and circumstances of each case. A family is the only juncture where brothers and sisters live together under their parents and enjoy the natural harmonious affection and love and share their small secrets of happiness. It is not in their interest to live apart from each other in different environments, under dispute and hatred which usually arise from the result of a broken home, therefore, the learned appellate Court has rightly interfered in the divided custody of both the minors." (Underline is mine) In the judgment reported as Mst. Nazli v. Muhammad Ilyas and another (2010 MLD 477) this Court has also held as under:

"Before dilating upon the above, it may be observed that one of the greatest blessings of the God Almighty for a child is that he should be part of a normal, integrated and unified family, because the children of broken homes grow up with lots of deprivations, deficiencies and carry the sense of loss, and incompleteness throughout their life; later children many a times are rendered a roller coaster or a rolling stone stumbling between the whims and caprice of two estranged parents, who on account of incompatibility or some other reason are not able to survive as husband and wife and as judicially experienced has the tendency and aptitude to use the minors as a tool to settle their grievances and scores qua each other; this undoubtedly has serious reflection on the minors' personality and may cause irreversible damage to his psyche. However, to control and minimize the impairment in this behalf where there are more than one minor and if no serious legal or factual impediment going against their welfare, it is required of the Courts on the obvious touchstone of the "paramount consideration" to adjudge with whom the minors should live. Because in my candid view, to compel the minors to live aloof shall in the ordinary course violate their right of togetherness, which in a natural right bestowed upon them by the nature as being the member of the clan of social animals (the human being). Thus the separation shall seriously militate regarding the welfare of the minors; resultantly, keeping them intact it should be determined by the Court as to which parent (person) shall be more suitable to retain the custody; this has nexus upon the preponderance of the factors regarding the minor's welfare, which in this case tilts in favour of the mother." (Underline is mine)

10. The upshot of the above discussion is that the judgments of the courts below are not sustainable in the eye of law and are accordingly set aside and the application for custody of the minor namely Mst. Iqra filed by the petitioner is allowed and the respondent is directed to handover her custody to the petitioner.

11. Before parting with this judgment, it is observed that the learned Guardian Judge/learned Trial Court shall arrange fortnightly schedule of meeting of Mst. Iqra with her father Bahadar Ali appellant and also for Eid holidays, winter and summer vacations. Parties are left to bear their own costs. AG/B-25/L Petition allowed.