2005 PLP 828 (MLD)

This judgment proposes to decide two Constitutional petitions, the one in hand and the other Writ Petition No.2634 of 2003, as both these seek consolidated judgment dated 19-6-2003 passed by the learned District Judge, Jhelum and the judgments dated 4-2-2004/21-4-2003 passed by the learned Civil Judge Sohawa, to be declared illegal, void and of no legal consequence.

2. Precisely, relevant facts are that the petitioner was married with respondent No.1 in the year 1991 and out of this wedlock a male child Muhammad Rizwan Qudoos was borne on 29-9-1992. Relations between the spouses became strained and ultimately resulted in divorce to the petitioner on 6-1-2001, which became effective on 19-4-2001. The petitioner having custody of minor son of the parties, filed suit for recovery of his maintenance allowance at the rate of Rs.1500 per month with effect from 1-1-2001. This suit was filed on 8-1-2003 with a claim of Rs.37,500 as arrears of maintenance, with the averments that the respondent No.1 being employed in Pakistan Army was quite well of to give the claimed maintenance to his son who at that time was at the age of 11 years.

3. Respondent No.1 being defendant in the suit, contested it by filing his written statement and refused his liability to pay the maintenance on the ground that he had filed on 10-5-2002 an application under section 25 of the Guardian and Wards Act 1890. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Judge Family Court who was seized of this suit after doing the needful, on the basis of his appraisal of evidence dismissed the suit of the petitioner vide judgment and decree dated 21-4-2003.

4. The petitioner aggrieved of the decision of the learned Judge Family Court filed an appeal in the name of her minor son before the learned District Judge, Jhelum, which was accepted and the suit was decreed allowing the maintenance allowance for the minor, at the rate of Rs.1,000 per month from January, 2001 till his custody with his mother, vide appellate judgment and decree dated 19-6-2003. Respondent No.1 filed Constitutional petition (Writ Petition No.2634 of 2003) for adjudgment of the appellate decree dated 19-6-2003 awarding maintenance to the minor Muhammad Rizwan Qudoos.

5. Respondent No.1 also filed a guardianship application for custody of the minor son Muhammad Rizwan Qudoos as noted in the foregoing paragraph which was contested by the petitioner by filing her written reply wherein, she asserted that it is in the welfare of the minor to allow his custody to remain with the petitioner, as respondent No.1 being in Army service has to shift from place to place which would adversely effect nourishment and educational career of the child. The learned Guardian Judge, seized of the matter, framed issues out of controversial pleadings of the parties and after doing the needful, custody of minor Muhammad Rizwan Qudoos was ordered to be given to respondent No.1 vide order dated 4-2-2003.

6. The petitioner aggrieved of the order regarding removal of custody of her minor son, filed an appeal before the learned District Judge, Jhelum, but remained unsuccessful as her appeal was dismissed on 19-6-2003. The Appellate Court maintained the order of the learned Guardian Judge dated 4-2-2003, and directed the petitioner to hand over custody of the minor to respondent No.1 within one month, failing which respondent No.1 was allowed to have recourse to law for getting the custody of the minor. The petitioner thereafter filed the instant Constitutional petition with the relief, noted above.

7. It was contended on behalf of the petitioner that both the respondents Nos.2 and 3 determined the question of custody of the minor, without looking into his welfare, attachment of the minor with her and nature of service of the respondent No.1 wherein he has to suffer transfers/postings from place to place including the posting at Odd Stations. Orders impugned relating to custody of the minor were said to be fanciful and opposed to the guidelines given by the superior Courts. On her behalf, case for retention of custody of the minor was urged and till his custody with the petitioner, the maintenance allowance awarded by the Appellate Court in the connected petition was urged to be maintained.

8. The learned counsel for respondent No.1 supported the concurrent orders of Guardian and Appellate Court but hotly contested the liability of respondent No.1 to pay the maintenance allowance. It was argued that the minor has entered a sensible age of about 12 years and the petitioner having lost her right of "Hazanat", custody has correctly been ordered to be given to respondent No.1 who is a natural guardian. It was also submitted on behalf of the respondent No.1 that he will keep the child along with him at the place of his posting and the apprehensions shown by the petitioner were misplaced. It was also contended that in view of age of the child he needs a strong supervisory control which can only be provided by the father.

9. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before dealing with the custody matter, it is appropriate to deal first with the dispute regarding maintenance allowance of the minor. There is no cavil about the proposition that liability to maintain minor child is not only religious/moral obligation of the father but it is also his bounded legal duty. Respondent No.1 being Gazetted Officer, can easily provide maintenance of Rs.1000 per month to his minor son which in view of a School going child, is not excessive or exorbitant, in this age of dearness and inflation. The only question which hinged for determination was, as to whether respondent No.1 who had also claimed custody of the minor by filing a petition under section 25 of the Guardian and Wards Act 1890 could deny to discharge his obligations on this basis till the time custody is not taken by him. The obvious answer is no, he will pay the maintenance unless and until the child goes to him and is fed by him on his dining table and gets education while living at his house respondent No.2 in view of the evidence on the file and the circumstances of the case, correctly concluded that the respondent No.1 is liable to provide maintenance till the custody of the minor remains with the petitioner. Thus, his findings in support of the impugned judgment challenged in connected Writ Petition No.2634 of 2003 are unexceptionable and deserved no interference. Even otherwise, lawful findings given after due appraisal of record, within the ambit of jurisdiction conferred by law, can neither be interfered nor substituted in the Constitutional jurisdiction, hence, the Writ Petition 2634 of 2003, has no merit in it and is accordingly dismissed with no order as to costs.

10. As regards the custody of the minor, concurrently having been ordered to be given to respondent No.1 solely for the reasons that he is a natural guardian, without properly attending to the question of the welfare of the minor I, now proceed to examine this matter. Undisputedly minor Muhammad Rizwan Qudoos has attained the age of 12 years and has entered in sensible tenure of his life and could make intelligent selection/choice between his parents for his abode but no effort by any of the two Courts was made to consider his opinion while deciding his custody. The learned counsel for respondent No.1 has correctly pointed out that at the age of 12 years the minor needs constant supervision which in view of the nature of service of respondent No.1, could be rendered by him or not, remained a question mark during the entire trial. The Honourable Supreme Court in the alighted judgment in the case of Mst. Firdous Iqbal v. Shafat Ali and others (2000 SCMR 838), graciously took notice of the fact that father in that case as well, was Army Personnel and remained under postings from one Cantonment to another, hence, would not be present in house to render the required supervision. In this case it was also mandated that while deciding the custody of the minor, his welfare has always been a paramount consideration and that the father would be entitled to the custody on account of his conduct in the light of facts and circumstances of each case. Right of the father as natural guardian was held to be not absolute right. This Court in the case of Muhammad Iqbal v. Additional District Judge (2000 CLC 108) held that welfare of the minor is the supreme consideration in the dispute regarding his custody and father who had neither provided any maintenance to his minor child nor had cared to meet him, it was not in the welfare of the minor to direct handing over custody to him especially when he is in service. In case of Mst. Naseem Kausar v. Muhammad Saleem and 2 others (2003 MLD 1306) this Court while holding the same principle and considering the welfare of the minor while deciding custody of child of 10 years held that minor being of intelligent age his preference was a relevant consideration. Alike findings were prepounded by a Division Bench from Quetta jurisdiction in the case of Mst. Farah Iqbal v. Muhammad Anwar and 2 others (PLD 2003 Quetta 131) and by a Division Bench judgment from the Peshawar jurisdiction in the case of Mst. Najma Yasmeen and another v. Javed Akhtar and 12 others (2003 CLC 729).

11. Considering the judgment impugned, on the touchstone of stairs decisis, noted in the foregoing paragraph, the reasons which weighed with both the Courts in returning their findings in support of the decision of handing over of custody to respondent No.1, were not only irrelevant but were also misconceived. As regards findings about independent source of income of the mother and her loss of right of "Hazanat" on account of age of the child, such consideration were not needed to be considered because, it is father's obligation to provide the maintenance and deprivation of right of "Hazanat", would not go to settle dispute of welfare of the child. Besides non-consideration of intelligent, preference of the child, it was ignored that the minor since divorce dated 6-1-2001 is in exclusive custody of the petitioner. Care and brought up which is being rendered by the petitioner to the child has not been held to be improper or lacking. Her right to meet the child and arrangements in this behalf were not made in the impugned order. There is nothing on the file to support the claim of respondent No.1 of custody that he has any attachment with him, out of which he had been looking after his educational career and he had been providing him maintenance. The bare perusal of the impugned order revealed that as a matter of fact question of welfare of the minor remained thirsty of the decision and the above noted lapse, negatively reflected on the order of the Guardian and Appellate Court. Disqualification of the petitioner on the basis of parameters laid down under Islamic Law was neither urged nor were borne out of the record and in absence of those, exclusion of mother from her child, for all times to come, appears to be very harsh especially when it is to the common knowledge of even a lay man that there is no substitute of mother's love and affection and such soothing attachment cannot be provided by the father. All these aspects of the matter escaped notice of both the Courts. Be that as it may, the matter of custody was not correctly decided keeping in view the welfare of the minor and other factors, noticed above. Hence the impugned orders required interference/indulgence by this Court.

12. For the reasons noted above the impugned orders being tainted with apparent illegalities, cannot be allowed to be sustained on their face. Constitutional Petition No.1974 of 2003 in hand, is accordingly accepted and both the orders by respondents Nos.2 and 3 are declared to be illegal, void and of non-existent, with the result that the application of respondent No.1 under section 25 of the Guardian and Wards Act 1890 shall be deemed to be pending before respondent No.3 who will decide it afresh in accordance with law, keeping in view the observations made above. Till the time the custody of the minor is finally decided, minor Muhammad Rizwan Qudoos will continue living with the petitioner and his maintenance allowance as awarded by the Appellate Court in the connected Writ Petition No.2634 of 2003 shall continue to be paid by respondent No.1. The parties are directed to appear before the Guardian Judge (respondent No.3) on 5-1-2005. There will be no order as to costs. M.H./K-80/K Order accordingly.