2011 PLP 2796 (YLR)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Facts of the case in brief are that the respondent No.3 Gulraiz Hussain filed an application under section 25-A of Guardians and Wards Act, 1890 before the Court of learned Guardian Judge, Multan, regarding custody of his minor son Saifi Rehman alleging therein that his marriage was solemnized with petitioner on 27-6-1992 and out of this wedlock two sons namely Khurram Shahzad and Saifi Rehman were born. Elder son Khurram Shahzad is residing with the respondent No.3, whereas, minor Saifi Rehman is in custody of the petitioner. The marriage between the parties was dissolved on 25-3-2004 by the learned Judge Family Court, Multan and the petitioner has contracted second marriage. The minor Saifi Rehman has reached school going age but the petitioner despite receiving maintenance from the respondent No.3 has not got him admitted in school. The respondent No.3 wants to provide the minor good education, whereas, step father and the mother have no interest in the proper upbringing of the minor. The respondent No.3 has great love and affection with his son, whereas, the petitioner has no attachment with the minor and she even refused to meet her elder son Khurram Shahzad. The step-father of the minor has no source of income and is of a criminal nature in whose presence upbringing of minor would adversely affect his character and personality.???????? The petitioner was asked to hand over the custody of minor who refused to do so.

2. The petitioner Rukhsana Begum contested the petition through filing written reply alleging therein that the respondent No.3 is a man of bad character and due to the cruel behaviour of the respondent No.3, she had to obtain divorce from him. Minor is being brought up properly. Besides reading Holy Quran he is also getting education in a school. The respondent No.3 has no source of income and the petitioner being the real mother of the minor can look after him in a proper manner.

3. Out of the divergent pleadings of' the parties, the learned Guardian Judge framed as many as four issues including relief. Both the parties led their oral as well as documentary evidence in respect of their respective claim.

4. The learned Guardian Judge after appreciating the evidence of the parties vide impugned judgment and decree dated 20-10-2009 accepted the guardian petition filed by the respondent No.3 and directed the petitioner to hand over the custody of minor to respondent No.3. Being aggrieved the petitioner filed appeal before the learned appellate court but the learned appellate court dismissed the same vide impugned 'judgment and decree dated 22-12-2009. Hence, the instant writ petition.

5. Learned counsel for the petitioner submitted that the judgments and decrees of the learned courts below are result of mis?reading and non-reading of the evidence; that the minor is residing with the mother since separation of the couple and has developed great love and affection with her; that the minor is getting proper education; that a decree of maintenance allowance has been passed against the respondent No.3, who has failed to pay maintenance allowance to the minor and an execution petition in this regard's pending before the learned trial court; that the respondent No.3 has no source of income and cannot bring up the minor in a proper manner; that re-marriage of the petitioner does not disqualify her for the custody of the minor; that there is no substitute of mother on the earth; that the welfare of the minor lies in the custody of the petitioner. Relies on 2002 MLD 1973 and PLD 2000 Pesh. 23.

6. Conversely, learned counsel for respondent No.3 vehemently argued in support of the impugned judgments and decrees and submitted that the courts below while passing the impugned judgments and decrees have kept in mind the welfare of the minor; that the petitioner has contracted second marriage and has a baby from her second husband; that the second husband of the petitioner 'also has six children out of his first wife who are living with her that the step father of the minor is a criminal person and F.I.R. bearing No. 199/99, under, sections 379/420/170 p .p C P.5 Lohari Gate, District Multan has been registered against him; that now the minor Saifi Rehman is ten years old but till to date the petitioner has not got him admitted in any school; that the step-father and step brothers of the minor maltreat him; that the elder son Khurram Shahzad who is residing with the respondent: No.3 is getting proper education; that it would be in the interest: of. the minor, that he should reside under the umbrella" of his real father along with his elder brother; that the respondent No.3' regularly paid; maintenance allowance to the minor till the decision; of guardian petition in his. favour; that tile minor has attained the age of ten years and under the, Muslim Law after re-marriage the mother loses the right of Hizanat; that the minor; did not reside with the petitioner, rather was residing with and in the custody of his maternal grandmother. In support of this version, learned counsel has placed on record report of Bailiff; that the welfare of the minor lies in the custody of father. Relies on 1986 SCMR 1944, 1981 SCMR 200 and 2011 SCMR 148.

7. Arguments heard. Record perused.

8. Admittedly, the petitioner has contracted second marriage and out of this wedlock she has given birth to one, daughter. It is also an admitted fact that, the respondent No.3 has not contracted second; marriage till to date. At present the age of the minor is ten years. According to the Muslim Law on contracting, second marriage the mother loses the right of custody or when the minor attains the, age of seven years but while deciding the, custody of the minor the paramount, consideration is the welfare of minor. It is also an admitted fact that the step-father of the minor has already six children out of, his first marriage, who are also residing in, the same house of serious matter, of crimes has also been registered against the step-father.

9. Merely on the basis of love and attachment of the minor with he mother, the minor cannot be given, I the hands of step-father, who has a criminal record in the presence of the real father, who has admittedly not contracted second marriage and is of a good character with no criminal record. School certificate of elder brother. Khurram Shahzad who is in custody of respondent No.3 is on the record which shows that he is getting education private school. Although it is the version of the petitioner that the minor Saifi Rehman is also getting education but she could not prove her version through cogent and reliable evidence.

10. It is not a hard and fast rule that on re-marrying the mother loses the right 'of custody of minor and in certain cases where the courts considered that the welfare of the minor was in the lap of the mother, the courts allowed the mothers to retain the custody of the minor yet in the present case there is nothing on the record indicating that the minor has some kind of affiliation with his mother or the step-father and both took any step for the welfare of the minor. It is the duty of the Court to look into the welfare of the minor while considering essential factors relating to his welfare including upbringing, educa?tion, health care, congenial domestic atmosphere and should not base its judgment on the factor as to whether the father or mother has more love or the minor is associated with the mother or father.

11. From the peculiar circumstances of this case and the evidence available on the record, this Court is of the considered view that in the present case welfare of the minor lies in the custody of his father. In the presence of real father the minor cannot be left at the mercy of the step-father who has already seven children and also has a criminal record. The minor has attained the age of ten years and the petitioner is unable to get him admitted in any school, whereas, on the other hand, the respondent No.3 is imparting proper education to his other son Khurram Shahzed who is residing with him since the separation of the couple. Reliance is placed on Mst. Ammara Waseem v. Syed Khawar Hussain and another (2011 SCMR 148).

12. So far as the contention of the petitioner that the respondent No.3 has not paid maintenance allowance to the minor despite decree of court, the respondent No.3 produced number of receipts regarding payment of maintenance allowance till the decision by the Guardian Court in his favour. It would also be grave injustice for the minor to keep him away from his real brother after separation of the parents. It is also important to note that in execution proceedings before the learned trial court, the Bailiff recovered the minor from the custody of his maternal grandmother and not from the petitioner indicating that the minor did not reside with the petitioner or she was unable to look after the minor due to her other more possessing obligations.

13. Both the courts below concurrently held against the petitioner and lawful decisions taken by courts below within the ambit of their jurisdiction conferred by law and based on sound reasons could neither be interfered nor could be substituted in Constitutional jurisdiction of this Court. The courts below have not committed any illegality in determining the question of welfare of minor. The cases referred to by the learned counsel for the petitioner are not relevant to the circumstances of the instant case, whereas, the case-law produced by the learned counsel for respondent No.3 is fully applicable in the present case.

14. For what has been discussed above, this petition has no force and the same stands dismissed. M.H./R-45/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.