1989 PLP 1285 (MLD)

‑‑‑S.25‑‑Constitution of Pakistan (1973), Art.199‑‑Custody of minors‑‑Question whether minor children were getting proper education was a question of fact which could not be gone into in Constitutional jurisdiction. (d) Guardians and Wards Act (VIII of 1890)‑‑ ‑‑‑S. 25‑‑Custody of minors‑‑If mother having custody of minors disregarded direction of Trial Court to get children admitted in school, that would give a fresh cause of action to father to' move a fresh application for custody of children. Naraindas C. Motiani for Petitioner. In this Constitutional Petition, the petitioner challenges the judgment and orders passed by the learned 1st Senior Civil Judge, Karachi (West) on 29‑11‑1987 and IInd Additional District Judge, Karachi (West) on 24th January, 1988. The facts leading to these proceedings are that the parties were legally married in 1975 and out of the wedlock two children namely, Tariq Mehmood and Rasheeda Parveen were born. The petitioner divorced the respondent No.1 on 2‑11‑1981. It was agreed between the parties, that custody of the minor son and daughter could be given to the petitioner, when they attained the age of 7 years and 12 years respectively and Rs.75 pet month were fixed as maintenance for each of children payable by the petitioner to the respondent. When minor Tariq Mehmood attained the age of 8 years, the petitioner filed an application under Section 25 of the Guardian and Wards Act for the custody of both the minors which was resisted by the respondent on the ground, that the petitioner had remarried and that it will not be in the welfare of the minors to stay with the petitioner. Both the Courts below came to the concurrent findings, that it will be in welfare of the minors that they should stay with their mother.

3. Admitted facts which appear to have weighted with the learned Courts below in arriving at the said conclusion are that after the divorce. the petitioner has remarried and has a daughter from second marriage, whereas the respondent No.1 is still unmarried. Secondly that for the purpose of livelihood, the petitioner is working in Saudi Arabia and therefore may not be able to pay proper attention and look after to the minors specially when they will be left at the mercy of their step‑mother. The trial Court had also called the minors and they had shown their reluctance to go with their father.

4. Mr Naraindas, learned counsel for the petitioner has contended, that the mere fact, that the petitioner has re‑married, would not disqualify him from getting the custody of the minors. I agree with him that or, that ground alone, the petitioner cannot be disqualified, but the Court cannot lose sight of the other admitted circumstances. Admittedly the petitioner is prescittly working in Saudi Arabia. Even this petition has not been filed by the petitioner in person, but has been riled through an Attorney. Under the circumstances there can he mi doubt that the petitioner would not be able to pay personal attention to the welfare and upbringing of his children, who will have to live with their step‑mother and would G be at her mercy. As against; that the fact that the respondent No. 1 has not married clearly shows, that she is devoting her full attention to the upbringing of her children. The mere fact, that the petitioner is earning more or is more affluent than respondent No. 1, would not compensate for the lack of personal attention of the petitioner and cannot substitute the personal attention now being devoted by the respondent No. 1 in bringing up her children.

5. It was further admitted by Mr. Naraindas, that the trial Court had directed the respondent No. 1 to get the children admitted in the school, if not already admitted, but she has still not got the children admitted in the school. The question as to whether the minor children are getting proper education is a C question of fact, which cannot be gone into in this writ petition. If the respondent No. 1 has disregarded the directions of the trial Court in this respect, it gives fresh cause of action to the petitioner to move a fresh application for the custody of children under the Guardians and Wards Act. The Courts below have given cogent reasons for their concurrent finding that it was in the welfare of the minors to remain with the respondent No. 1 and their conclusion appears to be correct in view of the abovementioned circumstances of the case. I find no reason to interfere with the concurrent findings of the Courts below and therefore dismiss this petition summarily. M.Y.H./A‑504/K Petition dismissed