1994 PLP 150 (MLD)

This petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, was against an order of learned Additional District Judge, Faisalabad, dated 19-7-1993, by which in modification of an order of Guardian Judge passed on 11-3-1992, custody of a son and daughter was allowed to remain with the respondent-mother. The Guardian Judge had divided their custody between the father and mother. He gave the custody of the son to the father and the daughter was allowed to remain with her mother. Petitioner was married to Mst. Khalida Parveen respondent in the year 1983. On 19-3-1984. she gave birth to a boy. He was named Muhammad Urfan Bari. On 30-12-1986, a daughter was born to them. Her name is Miss Fareha Bari. Unfortunately, the parties to the marriage could not pull on well. Their relations suffered severe strain. They separated from each other, Children were with the mother. On 8-4-1989, the petitioner permanently separated the respondent from his wedlock by pronouncing an irrevocable divorce upon her. The divorce was rendered effective on 5-7-1989. Reason for divorce was suspicion of infidelity by respondent and her loose moral. Divorce deed is not on file. Learned counsel for the petitioner is not in possession of its copy either. Therefore, the real reason for the divorce is not readily available. Independent of marriage, Mst. Khalida Parveen is real daughter of the paternal-aunt of the petitioner. Both were residents of a common Chak No.266/RB in Tehsil Jaranwala. Inter se close relationship between the parties could not save the marriage from failing,. On 26-7-1989, petitioner instituted a petition under section 25 of the Guardians and Wards Act for the recovery of custody of his two minor children namely Muhammad Urfan Bari and Miss Fareha Bari from the respondent through a Family Court at Faisalabad. It was averred that the respondent was a lady of unsound morality and ill-temperate. expressions which led to a divorce to her; she was not possessed of sufficient means to bring up the children in a befitting manner and that the interest and welfare of the children dictated for return of their custody to the petitioner. Respondent contested the petition and denied the averments in it by pleading that the interest and welfare of the children lay in her maintaining their custody. Guardian Court framed appropriate issues for decision and upon taking of evidence from the parties and its review, concluded that the petitioner was entitled to the custody of the boy and the mother, of the daughter. Both parties felt dissatisfied with the order of the Guardian Court and preferred appeals to the Court of learned District Judge. These were heard by a learned Additional District Judge, which culminated in the impugned order noticed in the preceding paragraph of the judgment. Aggrieved of it, the petitioner has come up in extraordinary jurisdiction of this Court for setting aside of the impugned judgments of the lower Courts and for restoration of custody of the minor children to him. I have heard learned counsel for the petitioner at length and seen the existing record. Upon its scrutiny, it could not be said that the impugned judgment of learned Additional District Judge was either illegal, without jurisdiction or without lawful authority. Petitioner suspected the respondent of loose morality and charged her for infidelity. Though the charge was serious but evidence in support of it was wholly wanting. Courts below did not express on it, and, in my opinion rightly, because there was no credible evidence to support it. It appeared to be a wild accusation by an annoyed husband who had already divorced his wife and upon taking second wife had a child from her. He had not much to loose by use of such invectives. Eversince, the divorce pronounced upon her, and, presumably much before this event, the children were with the mother. She looked after them and provided them sustenance. House of her father was a heaven of rest for her and her children. The boy was admitted to Fatima Jinnah Public School and was a student of fourth class in it. The girl was also studying in the first class of the aforesaid school. It is in evidence that the respondent had instituted a suit for maintenance for her two children against the petitioner in a family Court. Its result is not known from the present record. Learned counsel for the petitioner is unable to assist on it. He says, he is unaware of the proceedings in the suit for maintenance filed by respondent against the petitioner. Respondent has not remarried. She earns her own livelihood. Her father also gave monetary assistance to her. Petitioner did not contribute a penny towards the weal of the minor children. Instead, he took a second wife and has a child from her. He is employed in the Department of Export and Import, Government of Pakistan. But what good is his employment to the children when he does not share their welfare by providing a proper maintenance-cover to them. Minor daughter is a little less than seven years of age. Apart from care, love and affection of a real mother of which there was no substitute, she required her company and association for preparing her to shoulder responsibilities in future. Father could not be a proper guide for it. As far the boy, though he has crossed the age of seven years, he is being looked after well by the mother and was being given proper education in an English Medium School. The petitioner has a second wife in his house. She has her own child. She is stranger to the minor children born from respondent. In presence of her own child, and, presumably more children in future, she may have little care for the step-children. Treatment of a step-mother is proverbial in our society. Much is known and heard of it. It is not a pleasant affair to be under the protective cover of a step-mother. She is no match to the real mother. Poverty is not a disqualification for the real mother to hold custody of her children. Predominant consideration always governing the decision of a guardianship dispute is the welfare of the minor children. Learned Additional District Judge upon analysis of the material and related facts and circumstances of the case found that welfare of the minor children lay in their being with the mother and the father was not entitled to their custody. In my opinion, the assessment of record by him and the conclusions reached on its basis were neither infirm nor faulty, muchless without jurisdiction. Question of welfare of the minor-children was rightly resolved in favour of the mother in the lower Court. It was not susceptible to a further review for substituting a different conclusion by this Court in place of the conclusion arrived at in the lower Court. In view of the aforesaid, writ petition carries little force. It is dismissed in limine. AA./A-498/L Petition dismissed.