1991 PLP 166 (MLD)

This petition arises out of a matter pertaining to custody of the minors. Mst. Ruqayya Yasmin petitioner was married to Muhammad Riaz, respondent No. 1 on 27th March, 1981. Out of this wedlock, a daughter Farrukh Riaz and a son namely Farhan Riaz were born on 18th May, 1982 and 13th September, 1983 respectively. It appears that the petitioner was divorced by respondent No. 1 in November, 1984. On 15-6-1985 an application under section 25 of the Guardians and Wards Act for the custody of the two minors was filed by respondent No. 1 against the petitioner before the Family Court/Guardian Judge, Sargodha. The custody was claimed on the ground that the petitioner was not a woman of good character and, therefore, it was not in the welfare of the minors that they remained with her. This petition was contested by the petitioner by filing a written statement which led to the framing of the following issues:- (1) Whether the petitioner is entitled to the custody of minors? O.P.P. (2) Whether the petition is not filed according to law? O.P.R. (3) Whether the petitioner has no cause of action? O.P.R. (4) Relief. In support of his case the respondent No. 1 produced Munawwar Hussain, A.W.1; Mazhar Iqbal, A.W.2; and appeared himself as A.W.3. The petitioner examined only one witness namely Ahmad Khan, whose statement was recorded as R.W.1 and she appeared as her own witness as R.W.

2. During the pendency of these proceedings before the Guardian Judge, the petitioner remarried on 26th June, 1987. The Guardian Judge by means of his order dated 4-10-1987 held that on account of remarriage with a stranger, the petitioner had lost her right to retain the custody of the minors which should be handed over to respondent No.

1. This order of the Guardian Judge was challenged by the petitioner by filing an appeal which was dismissed on 10th July, 1989. Hence this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

3. Malik Amjid Pervaiz, Advocate appearing for the petitioner contended that the question of the custody of the minors could not be decided on the sole basis that the petitioner had remarried and the Courts below were under an obligation to have examined the entire evidence on the record and to find out as to whether or not it would be in the welfare of the minors that they should continue living with the petitioner despite her remarriage. Sardar Muhammad Latif Khan Khosa, learned counsel for the respondent, on the other hand, has contended that the petitioner has not approached this Court with clean hands as she had denied the factum of her remarriage when her statement was recorded by the Guardian Judge. The other objection raised by the learned counsel is that finding of fact recorded by the Courts below cannot be interfered with in the Constitutional jurisdiction of this Court. It has further been argued that under the Islamic law a mother loses right of Hizanat on her remarriage with a stranger and, therefore, the view taken by the two Courts below is not liable to be interfered with in the Constitutional jurisdiction of this Court being perfectly in accord with the law.

4. From a perusal of the orders passed by the Guardian Judge as also the Additional District Judge, it becomes abundantly clear that the only reason which prevailed with them for directing that the custody of the minors be handed over to respondent No. 1, the father, was that the petitioner on account of her remarriage with the stranger has lost her right of Hizanat. Unfortunately, however, while deciding the application no attention was paid by the Courts below either to the evidence on the record nor was any effort made so as to ascertain that it would be in the welfare of the minors to continue living with the mother notwithstanding her remarriage. It is trite law that the dominant or rather the only factor which is to be considered by the Courts while determining the question of custody of the minors is, their welfare. To this paramount consideration all other reasons are subordinate. The fact that the petitioner had remarried was one of the factors which could be taken into consideration while deciding the dispute but it certainly form the sole basis. Reference in this connection may be made to Shagufta Bano v. Musarrat Hanif and others 1982 CLC 1821; Mst. Rafiqan and 2 others v. Jalal Din 1983 SCMR 481; Mst. Jannatan v. Ch. Abdul Hamid and others 1984 CLC 345 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1983 SCMR 606 it was observed that:- " .It is, therefore, provided' specifically that although the guardian is entitled to such a custody, no order will be made to that effect unless the Court is satisfied that it will, be for the welfare of the ward. Even if there be a presumption that it is for the welfare of the ward to deliver him into the custody of guardian, the Court will have to weigh it against the other weighty considerations on the record. The overriding and paramount consideration always is the welfare of the minor. Indeed this is the sole consideration that must prevail in the final analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in this favour unless it is in their welfare to do so. The welfare of a minor means his material, intellectual, moral and spiritual well-being." The Courts below while dismissing the appeal relied upon Mst. Parveen Akhtar v. Muhammad Ashraf 1986 SCMR 1944 and Mst. Zubeda Khanum v. The District Judge, Karachi South and 2 others 1988 CLC 556 but these authorities are distinguishable on facts inasmuch as, in both the cases it was held that the welfare of the minors demanded that their custody be granted to their father. I Unfortunately, in the present case, as already indicated, no such exercise was undertaken which has rendered the orders of the Courts below to be without lawful authority. It is also to be noticed that while adjudicating upon the question, the custody of minors, it is not the right of the parties which is required to be decided by the Courts but instead it is the welfare of the minors which has to, be considered. Consequently, both the Courts below fell in serious error in proceeding to decide the application for custody of the minors on the sole ground that the petitioner had lost her right of Hizanat. Another legal error committed by the Courts below is that they have failed to consider that the factum of remarriage of the mother has no relevance as regards the custody of the male child for this principle is only applicable in cases of females. As a result of what has been stated above, this petition is accepted and the impugned orders are declared to be without lawful authority and of no legal effect with the result that the application for custody filed by the petitioner will be deemed to be pending before the Guardian Judge, Sargodha, who shall now proceed to decide it in accordance with law. As the matter remained pending for a considerable period of time, it is directed that the said application shall be decided within three months from today. The learned counsel for respondent No. 1 has requested that some interim arrangements for enabling the father/respondent to meet the minors should be made. The learned counsel for the petitioner has no objection in this behalf. It is accordingly directed that the minors shall be produced on the last Thursday of every month before the Guardian Judge, so as to enable the respondent No. 1 to meet them for about 3-4 hours. The parties shall appear before the Guardian Judge, Sargodha on 29-11-1990. No order as to costs. A.A./R-256/L Case remanded.