2023 PLP 218 (MLD)

ABID HUSSAIN CHATTHA, J.

This constitutional Petition is directed against the impugned Judgment and Memo of Costs dated 22.02.2022 passed by Additional District Judge, Khanewal, whereby, the custody of minor girl, Mst. Faryal Gohar (the "Minor") was awarded to Respondent No. 3 (the "Respondent") as father of the Minor, thereby, reversing the Judgment and Memo of Costs dated 10.07.2021 rendered by Judge Family Court, Khanewal, whereby, the custody of the Minor was adjudged in favour of the Petitioner as mother of the Minor.

2. The brief facts of this case are that the Respondent filed a Custody Petition under section 25 of the Guardians and Wards Act, 1890 (the "Act") seeking custody of the Minor. It was averred therein that marriage between the Petitioner and the Respondent was solemnized on 19.02.2004 according to Muslim Personal Law. Out of this wedlock, the Minor was born on 07.11.2008. She went to Ghazali Public School, Lothar from 15.05.2012 to 31.12.2015. On account of family disputes, the Petitioner left the house of the Respondent on 15.01.2016 and also took the Minor with her. The Respondent filed a suit for restitution of conjugal rights against the Petitioner which was decreed on 26.11.2016. However, efforts of the Respondent to rehabilitate the Petitioner proved futile. The Respondent filed a Custody Petition on 05.02.2016 but the same was withdrawn due to lack of territorial jurisdiction. Later, another Custody Petition was filed on 13.12.2017 which was statedly dismissed for non-prosecution on account of assurance by the parents of the Petitioner regarding her rapprochement with the Respondent. Eventually, the Respondent divorced the Petitioner through a written divorce deed dated 10.10.2019 (the "Divorce Deed") in the presence of witnesses. The Petitioner was bestowed custody of the Minor by the Respondent himself with the condition that she will not remarry and will always take best care of the Minor. However, the Petitioner after the divorce, contracted second marriage with one, Zafar Iqbal and left the Minor in the house of her parents. It was claimed that since then the Minor is suffering and is not being raised properly. The welfare of the Minor as well as her age demands that her custody be conferred to the Respondent who can properly raise and take care of the Minor as he has not contracted second marriage and is in a position to raise the Minor in the best possible manner. It was emphasized that best welfare of the Minor rests with the Respondent.

3. Conversely, the contentions raised in the Custody Petition were controverted by the Petitioner. It was alleged that the custody was sought by the Respondent in order to escape his liability for payment of maintenance allowance to the Minor pursuant to the Judgment and Decree dated 24.05.2017 and to harass the Petitioner. It was asserted that the Respondent did not admit the Minor in any school ever who lived with the Petitioner since her birth under the protection of her maternal grandparents. The Petitioner admitted her second marriage with Zafar Iqbal, a cousin of the parties and stated that it is in no way an impediment in the upbringing and welfare of the Minor who is residing with her. The Minor is also being properly educated. The Respondent was never serious in the custody of the Minor and his first Custody Petition was dismissed for non-prosecution. The Respondent has not paid the maintenance allowance of the Minor and never made any effort for rehabilitation of the Petitioner. Infact, the Respondent himself divorced the Petitioner through the Divorce Deed. The Petitioner specifically pleaded that the Respondent is a drug addict, womanizer and bears immoral character. It was further asserted that the financial position of the Respondent was never good as he in his evidence in the suit for recovery of maintenance allowance deposed that he can only pay Rs. 2,000/- per month to the Minor as maintenance allowance. As such, it is evident that he is unable to raise the Minor keeping in view her requirements in the growing age.

4. The Family Court after framing the issues, recorded respective evidence of the parties. The pivotal issue was issue No. 1 as to whether the welfare of the Minor lies with the Respondent and if so, he is entitled to get custody of the Minor. Onus to prove this issue was placed upon the Respondent. The Family Court concluded that best welfare of the Minor in the instant case vests with the Petitioner and drew a visitation schedule in favour of the Respondent as father recognizing his visitation rights. The conclusion of the Family Court in this behalf was based upon the following considerations:- (i) Admittedly, the Petitioner is raising the Minor since her birth. As such, the Minor is naturally attached to the Petitioner; (ii) The conduct of the Respondent with respect to default in payment of maintenance allowance of the Minor on regular basis despite the Decree passed against him proves that he was not much concerned with the welfare of the Minor; (iii) The Respondent did not file any application for meeting with the Minor or showed any concern regarding the Minor during the course of proceedings; (iv) The suit for recovery of maintenance allowance of the Minor remained pending between the Petitioner and the Respondent for a considerable period of time but no effort regarding custody of the Minor was made by the Respondent; (v) The school certificate produced by the Petitioner proves that the Minor is being properly educated and bears good moral character; (vi) There are no specific allegations against the Petitioner disentitling her from custody of the Minor. As such, there is no reason to deprive the Minor from the lap of her mother of which there is no substitute; (vii) The right of the father to claim custody of the Minor is not an absolute right and the father may be disentitled from the same on account of his conduct depending upon the facts and circumstances of each case as held in case titled, "Mst. Nighat Firdous v. Khadim Hussain" (1998 SCMR 1593); and (viii) There is no cogent evidence on record to prove the general and evasive allegation that environment of the Petitioner's house is not conducive for welfare of the Minor.

5. In Appeal filed by the Respondent, the Appellate Court reversed the findings recorded by the Family Court and handed over custody of the Minor to the Respondent subject to payment of outstanding amount of maintenance allowance of the Minor to the Petitioner. A visitation schedule in favour of the Petitioner was drawn to meet the Minor. The impugned Judgment of reversal was passed on account of the following reasons:- (i) The Petitioner contracted second marriage with a stranger to the Minor, as such, lost her right for custody of the Minor; (ii) The Petitioner admittedly contracted second marriage on 26.01.2020 within a period of three months after divorce which shows that she is not a lady of normal character as she did not even wait for completion of Iddat period; (iii) The Petitioner did not produce her second husband in the dock to make the Court believe that he would live with the Minor like a father keeping in view the limitations prescribed by Muhammadan Law. Hence, an association of a stranger with the Minor aged about 13 to 14 years who is entering in her puberty age would pose a grave risk to the sanctity of the Minor; (iv) The welfare of the Minor also includes her upbringing within the moral and social protection from all evils. A father being a natural guardian was the best protector of his children and cannot be equated or replaced by a stepfather; and (v) The Family Court for the reasons stated above misread the evidence on record to award custody of the Minor to the Petitioner.

6. Arguments heard and record perused.

7. It is trite law that best welfare of a child is the paramount consideration to determine the question of custody as stipulated in sections 7 and 17 of the Act. It is always hard and difficult to establish the right of the father or the mother regarding custody of a child on the touchstone of welfare. The term 'welfare' is an overarching concept which includes material, intellectual, moral and spiritual well-being of the child. There is judicial consensus to the effect that welfare of a child is to be determined on the basis of evidence on record and circumstances of each case. The prescribed principles of custody (Hizanat) ought to be followed yet such principles in favour of father or mother can be deviated in the supreme interest of child measured on the exclusive yardstick of welfare. No absolute right vests with the father or mother regarding custody of a child and in the presence of rival claims, the supreme welfare of the child is to be determined on the basis of evidence on record and prevalent circumstances of a particular case.

8. In the instant case, admittedly the Minor has been raised and brought up by the Petitioner since her birth. The Minor was more than 11 years of age when the Custody Petition was filed by the Respondent. There is no confidence inspiring evidence on record to the effect that the Respondent was much disturbed or eager regarding custody of the Minor. The Divorce Deed which is admitted by the Respondent in paragraph No. 7 of the Custody Petition, importantly reads as under:-

9. It is evident from the above that initially the custody of the Minor was handed over to the Petitioner by the Respondent himself through the Divorce Deed. The Respondent also specifically stipulated therein that he did not have any objection regarding the second marriage of the Petitioner. The general principle of Muhammadan Law that a Muslim father being a natural guardian of a child has preferential right of custody is always subject to welfare of the child and in the instant case, the right was waived and conferred by the Respondent upon the Petitioner himself through the Divorce Deed. There are no allegations of immorality regarding the character of the Petitioner. The evidence on record manifestly and vividly depicts that the Petitioner has raised the Minor since her birth in an immaculate manner. She has provided her with congenial and conducive environment. She made arrangements for her proper education. The Minor is going to private school, Rising Future School System and is being provided with quality education.

10. It is proved that the Respondent is not a man of adequate financial resources. There is no rebuttal to the facts that he claimed his monthly income of Rs. 8,000/- per month and showed his willingness to pay a meager amount of Rs. 2,000/- per month as maintenance allowance to the Minor. Even the Decree dated 24.05.2017 passed by the Family Court with respect to the maintenance allowance of the Minor remained unsatisfied on regular basis. The maintenance allowance as per the said Decree was granted only @ Rs. 4,000/- per month with 10% annual increase. An Execution Petition was filed and the said Decree is stated to be satisfied for the time being pursuant to the Judgment of the Appellate Court on 18.04.2022. This fact alone demonstrates not only the financial position of the Respondent but also exposes his attachment, love and concern towards the Minor. Admittedly, the Respondent is a labourer who claimed to work from 09:00 a.m. to 05:00 p.m. As such, he substantially stays outside the house. Although poverty is not a basis to deny custody yet the conduct of the Respondent towards the Minor in this respect was conspicuously relevant as the needs of the Minor were being met by the Petitioner.

11. There is no allegation attributed to the second husband from which it can be inferred that the welfare of the Minor would be in jeopardy while residing with her mother in the house of stepfather. It is also established that second husband is a cousin of the Petitioner and the Respondent, hence, not a complete stranger to the Minor. There are no specific allegations or evidence on record regarding adverse living conditions of the Minor with her mother. It is a universally acknowledged truth that lap of mother is the best protection for the child and there is no substitute regarding love of the mother. The well-being and upbringing of a child is directly proportionate to the love, care and attention of the mother. A female can best repose and share her worries and concerns with her mother. The presumption attached thereto is not dislodged on the basis of evidence on record. It is now well settled that lack of financial resources of a lady is not a ground to disentitle her from custody of her children as father under the law was obliged to maintain his child. For reference, see case titled, "Mst. Razia Bibi v. Riaz Ahmad and another" (2004 SCMR 821).

12. Paras Nos. 352 and 354 of the Muhammadan Law by Mulla stipulate that the mother is entitled to the custody of her female child until she attains puberty and the right continues even after divorce until she marries a second husband not related to the child within the prohibited degree. The right revives on dissolution of marriage by death or divorce. The Honorable Supreme Court of Pakistan while interpreting the aforesaid principles of Muhammadan Law held that it is a normal and general rule but not an absolute rule which can be departed in the supreme welfare of the child. Mere fact of second marriage by a lady is not by itself a consideration to disentitle her from the custody of her child if welfare of the child in the opinion of the Court still rests with the mother. Reliance is placed on case titled, "Shabana Naz v. Muhammad Saleem" (2014 SCMR 343). In case titled, "Mehmood Akhtar v. District Judge Attock and 2 others" (2004 SCMR 1839) while recognizing voluntary settlement between the parents at the time of separation, the Apex Court allowed custody of a female child to the mother by pronouncing that the right of custody of a child is not an absolute right. The father or mother, as the case may be, may abandon this right. The welfare of children is to be determined keeping in view their mental, intellectual, moral and spiritual well-being as held in case titled, "Gulzar Khan v. Mst. Rahima and 3 others" (2020 CLC 1340).

13. The Appellate Court overlooked the contents of the Divorce Deed, wherein, the Respondent had himself conferred the right of second marriage upon the Petitioner and consented to give her custody of the Minor. The allegations leveled upon the Respondent by the Petitioner to the effect that he is a habitual drug addict and a womanizer in her pleadings and later, in her examination-in-chief went un-rebutted as she was not cross-examined regarding the same. As such, the allegations stood proved. Responding to a suggestion regarding her second marriage, the Petitioner also clarified that she contracted second marriage after three months from the date of Divorce Deed since she had been separated from the Respondent much before the date of Divorce Deed. Therefore, the observation of the Appellate Court to the effect that the Petitioner is not a lady of normal character as she contracted second marriage before completing her period of Iddat is incorrect and is based on presumption against the evidence on record. Non-production of husband of the Petitioner in the witness box was not necessary as nothing was attributed to him. The inability and reluctance of the Respondent to maintain the Minor due to inadequate financial resources and lack of interest were also proved. He was a labourer and had to go outside his house for work. His indifference in meeting with the Minor and irregular payment of meager maintenance allowance was established. The Petitioner was entitled to the custody of the Minor in the supreme interest and welfare of the Minor. Hence, the Appellate Court has misread the evidence on record to reverse a well-reasoned and sound Judgment passed by the Family Court.

14. In view of the above discussion, this Writ Petition is accepted; impugned Judgment and Decree dated 22.02.2022 passed by the Appellate Court is set-aside and in consequence thereof, the Judgment and Decree dated 10.07.2021 passed by the Family Court is upheld. No order as to costs. MH/F-22/L Petition allowed.