1993 PLP 2078 (CLC)

Petitioner is cousin of respondent No.

3. His mother is her paternal -aunt. They were marrried on 8‑5‑1981. Their marriage proved short lived. During her pregnancy, respondent No. 3 was made to leave for her parents' house. She gave birth to a son named Muhammad Tahir on 17‑9‑1983, in the Hospital. Ever since, she alongwith her son resided under the roof of her parents. They looked after them. ' Respondent No: 3 brought a suit for divorce against the petitioner in a Family Court on contest. She was shown to have been given Khula'‑divorce by the Family Court. Since then, they lived in permanent separation from each other. The date of filing of the suit for divorce and the decree passed in it were not ascertainable from the present record. Respondent No. 3 also brought a suit for maintenance on behalf of her son against the petitioner. It was decreed in her favour. It was not known, whether an appeal was filed from the maintenance decree. Record of the maintenance decree was not forthcoming. It was asserted that the petitioner was paying the maintenance in terms of maintenance decree to the minor child.. In March, 1985, petitioner instituted a petition under section 25 of the Guardians and Wards Act, 1890, for recovering the custody of ward from respondent No.

3. Ward was then hardly two and half years old. On 17‑3‑1986, the Guardian Judge, Lahore dismissed the above petition on merits. Comments on question of welfare of the ward were also made in the judgment of the Guardian Judge. An appeal from the decision of the Guardian Judge was dismissed on 18‑9‑1986, by Additional District Judge, Lahore and a Writ Petition No. 4418 of 1986 riled in this Court also failed on 13‑4‑1987. Petition for Special Leave to Appeal No. 328 of 1987 preferred from the judgment of the High Court passed on writ petition was also dismissed on 11‑5‑1988, by their Lordships of the Supreme Court. Ward is admitted to a local school. Presently, he is a student of fourth class. He also received religious instructions. He was being looked after by his mother and the grand‑parents. In May 1990 (9‑5‑1990), an application for enhancement of monthly maintenance secured in a maintenance decree to the ward was filed on his behalf in the Family Court. Petitioner resisted the enhancement. Petition was dismissed by the Family Court and appeal filed from the decision was shown to have failed and a writ petition preferred thereafter in this Court was stated to be sub judice. Learned counsel gave no reference to assist locate its record. After divorce‑decree' in favour of respondent No. 3 passed on 1‑11‑1986, petitioner contracted a second marriage. He has a daughter and a son from it. Second wife of the petitioner is not related to the ward. On 12‑7‑1990, petitioner brought a petition for regaining the actual custody of his son Muhammad Tahir from respondent No.

3. At the time of filing of the petition, the ward had reached the age of seven years. It was asserted that the interest and welfare of the ward dictated return of his custody to him and that his growth was being neglected by respondent No. 3 in the house of her parents. Respondent No. 3 contested the petition; disclosed the past chronological events and their impact on the question of interest and welfare of the ward. It was submitted that since the day of his birth, the child remained in the custody of respondent No. 3 and was being looked after well by her. The trial Court settled necessary issues on 14‑1‑1991. The issues have been correctly given in the impugned judgments and need not be reproduced. Upon taking evidence from the parties and its review, the trial Court concluded that interest and welfare of the ward lay in his being with the real mother and dismissed the petition on 3‑2‑1992. An appeal preferred from the adverse decision by the petitioner was dismissed by learned Additional District Judge, Lahore on 1.5‑2‑1993. He endorsed the conclusions reached in the judgment of the trial Court. Thereupon, the present writ petition was filed in this Court. From the above, it was clear that the only question requiring decision in the petition was; whether the question of interest arid welfare of the ward respecting dispute about his custody was rightly resolved in the lower Courts. Admittedly, the ward had crossed a little over seven years of age. Subject to an overriding consideration of welfare a father is entitled to the custody of a boy of the age of seven years or above. Predominant consideration in the ultimate analysis was the welfare of the ward which dictated the decision of his existing or future custody. The mother, after divorce, had not remarried. The father lost no time for getting a second wife for him. He has children from his second wife. The minor and the mother resided together in days of adversity. They were acclimatised and were a solace to each other. The mother passed her forlorn life in the company of her growing son. The father enjoyed the company of a second wife and children from her. The ward ever-since he saw the first light was in the custody of his mother. Grand‑parents provided him the shelter. The father was made to pay the maintenance under a command of a Family Court. Independent of it, he was oblivious of his obligation to his son. Disturbance of custody at this stage of time for its transfer to a house to share the company of a step‑mother has the clear potential of obstructing the smooth future growth of the ward. Exceptions apart, treatment of a step‑mother is proverbial. Much thought is not required to demonstrate it. She has her own children to look after and cater for. In their presence, she may not have much love and affection for the step‑son. Decision arrived at in the earlier proceedings was not res judicata on the question of welfare of the ward for reagitating it in the second round of litigation, but it was surely relevant and helpful for determining the issue of welfare of the ward arising for decision between his parents. There was no flaw in the person of respondent No.

3. Allegations levelled against her were not proved in the first round of litigation. There was no substitute for the care, love and affection of a mother for her progeny. Provision of necessary funds for rearing up the child properly was the responsibility of the father. Poverty of the mother was not a disqualification for her to hold custody of the child, if it was in his welfare. Lower Courts have carefully sifted the material placed before them for finding the issue of welfare of the ward in favour of respondent No.

3. They are agreed on it. Question of welfare was essentially a question of fact turning on the appreciation of evidence led in the case. In the present case, the finding rests on strong evidence. Facts and circumstances clearly tilted the scales in favour of respondent No. 3 to hold custody of her son. Therefore, it shall be an idle exercise to characterise the impugned judgments, either as illegal or without jurisdiction. On the contrary, these were the well‑considered judgments which took account of all the relevant factors bearing on the question of welfare of the minor child. In my opinion, there was little scope for a different view, more particularly, in the limited scope of judicial review. Writ petition, thus, fails in limine. Records be returned. A.A./M‑1094/L Petition dismissed.