1999 PLP 1754 (MLD)

Tariq Asad for Respondent. Dates of hearing: 12th and 13th January, 1998. Through the instant Constitution petition, legality and the propriety of the orders made by the two Courts below i.e. the learned Guardian Judge, Islamabad and the learned Additional District Judge Islamabad pave been called in question whereby the custody of the minor Muhammad Bilal Iqbal has been ordered to be given to the respondent, Mst. Samina Nisar, the real mother of the minor.

2. After recording evidence and hearing learned counsel for the parties, both the learned Courts below have recorded concurrent findings of fact that the welfare of the minor Muhammad Bilal Iqbal lies in his being given in the custody of the respondent mother. Father of the minor feeling dissatisfied and aggrieved of the said findings of the Courts below has invoked-the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. The burden of proving that the findings as recorded by the two Courts below are such as called for interference by this Court in its extra ordinary jurisdiction lies on the petitioner and unless the petitioner proves that the said findings are either vitiated by the evidence on the record or suffer from non-reading of a material evidence on the record or that there is some other jurisdictional defect which the findings recorded by the Courts below suffered from, no interference can be made by this Court in its Constitutional jurisdiction which by its very nature is limited.

3. Mr. Muhammad Kowkab Iqbal, Advocate appearing in support of the instant Constitution petition raised the following contentions to persuade this Court to upset the concurrent findings of fact of the Courts below: (i) that the petitioner who is the real father of the minor is living in a posh locality of Sector F-6/2, Islamabad in a house which is very big and palatial and provided with all the comforts of life. As opposed to this, respondent mother was alleged by the father to be living in a locality of sector G-9/3, Islamabad in a rented house and that if compared the atmosphere and the environment of the two places of the contesting parties was poles apart; (ii) that the father of the minor had undergone 13 days mother Care Course from the United States of America and by dint thereof he was more qualified to contribute to the welfare of the minor rather than the respondent mother; (iii) that the petitioner was a well of person and could afford the expenses of the schooling of the minor in Beacon House School whereas the respondent mother who was a low paid teacher was not in a position to afford costly education for the minor child. (iv) that the respondent's character was open to serious question and she was not a person fit enough to be entrusted with the custody of the minor child.

4. Mr. Muhammad Tariq Asad, Advocate, learned counsel for the respondent mother controverted the submissions of the learned counsel for the petitioner hereinabove made and submitted that the respondent mother was living in the very city, Islamabad in sector G-9/3, which was equally a posh locality and that it was not the locality which mattered much but it was the motherly love and affection which was of prime importance and of which the petitioner had deprived the minor by keeping him away from the mother. So far as the contention of the learned counsel for the petitioner as to the financial position of the petitioner was concerned, learned counsel for the respondent mother submitted that the learned counsel except bare of mouth had not placed any solid proof/evidence as to the financial resources of the petitioner. In any event, learned counsel for the respondent mother submitted that even if it was conceded for the sake of argument that the petitioner was a well of person and the respondent mother compared to him was poorer, this was no ground for depriving the mother of the custody of minor son. For even if the minor is given over to the mother, the father cannot be absolved of his responsibility to maintain the child and to look after his welfare. The assertion of the learned counsel for the petitioner to the effect that the father of the minor had under gone 13 days Mother Care Course from the United States of America and by dint of the same, he was more qualified and suited to contribute to the welfare and well being of the minor was equally devoid of force. Learned counsel for the respondent mother borrowing the words as used by the learned Additional District Judge in his judgment submitted that "the sticky water which flowed form the mouth of the mother was more invigorating for the child than the purest money which a father could provide". Learned counsel for the respondent further submitted that the petitioner by depriving the minor of the motherly love and affection, has created a situation which ultimately is going to result in developing defective personality of the minor. Finally, learned counsel for the respondent mother rejected the allegation of the petitioner as to the character of the respondent mother as being wholly wild and scandalous. Learned counsel for the respondent mother submitted that the falsity of the allegations levelled by the petitioner father against the respondent mother can be gathered from the fact that the said preposterous allegations notwithstanding, he has not divorced the respondent mother till this day. Learned counsel arguing with some vehemence submitted that if the respondent mother was of that bad a character as she has been shown to possess, then how was it that the petitioner was still bound in the wed-lock with her and has not divorced her. Learned counsel for the respondent mother submitted that the petitioner in order to deprive the respondent mother of the custody of the minor had levelled all sorts of allegations against the respondent mother, right and left which were wholly without any merit and were not such as could furnish the basis for depriving the mother of the custody of her minor son.

5. I have considered and evaluated the submissions of the learned counsel for the parties hereinabove reproduced and gone through the record with special reference to the orders made by the Courts below. While evaluating the submissions made on behalf of the learned counsel for the parties, I am not oblivious of the fact that the aforesaid questions have been raised before this Court in its Constitutional jurisdiction which though extra ordinary yet is very limited. The question of welfare of the minor is not the question of law but is rather a question of fact. Both the learned Courts below have concurrently held that the welfare of the minor lies in his being given in the custody of the mother. These are findings of fact. Darned counsel for the petitioner has however, not pointed out any jurisdictional defect which the findings recorded by the two Courts below suffered from. It is not his case either that the evidence on the record has either been misread or some material evidence brought on the record was not read and taken into consideration. These are the only parameters on which an interference can be made even though the findings sought to be interfered with are findings of fact. Such, however, as aforesaid, is not the case of the petitioner before this Court. During the course of his learned arguments, learned counsel for the petitioner boasted of the alleged financial superiority of the petitioner father over the respondent mother. However, poverty of a mother or meagreness of her resources has never been accepted as a ground for depriving her of the custody of a minor if the dictates of the welfare of the minor warranted custody to be given to the mother. The welfare of the minor it may be pointed out cannot be determined or tested on the touch stone of the material well being of a party claiming the custody. Various factors, such as moral spiritual, intellectual, social and economic well being put together decide the question of welfare. Material well being alone of which the learned counsel for the petitioner talked so high is not the only factor. As rightly pointed out by the learned Additional District Judge and beautifully, too, that the sticky water of mouth of the mother was more invigorating than the honey which a father could provide. It is indeed a beautiful illustration of the difference which motherly love can bring about in a minor's life. I had myself during the course of the hearing of this petition sent for the minor, so as to ascertain for myself as to how was the minor being kept by the petitioner. The conclusion which I have arrived at is that the petitioner by depriving the minor of the care, love and affection of the mother has turned him into a complete stranger and I am convinced that if the situation as it is continues unchecked the minor shall at one time refuse to recognize his mother. With a view to bringing normally in their relations and cultivating some understanding between the mother and the minor, I had directed that a meeting shall take place in the officer of Additional Registrar of this Court on every Saturday. I am sorry to say that the petitioner consistent with his behaviour which led to the estrangement between the two spouses did not permit even in one single meeting the minor to stay with the mother after few meetings in keeping with the tutoring of the petitioner, the child would ask for leaving the company of the mother. I have seen the mother myself. She is an educated lady. Previously she was a teacher somewhere but she is doing some better job now and getting about Rs.8,000 by way of her salary. She can look after the minor very well. I have not been above to discover for myself any physical, mental or any other defect in the respondent mother, so as to disentitle her to the custody of the minor. The concurrent findings of fact recorded by the two Courts below do not warrant interference by this Court. Even if the custody goes to the C mother, the petitioner father shall not be absolved of his responsibility to maintain the child or to contribute to his welfare. The instant constitutional petition is devoid of any merit and is dismissed as such, leaving the patties to bear their own costs. The petitioner is directed to hand over the custody of the minor to the mother who has been deprived of the same for the last 6 years. The petitioner shall, however, be entitled to take the child at the week end to his house and to return him on the Sunday evening before the sunset at the residence of the mother. A.A./M-801/L Petition dismissed.