2008 PLP 654 (CLC)

ARSHAD NOOR KHAN, J.

This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by the petitioner thereby challenging the legality and validity of the judgment, dated 22-11-2007 passed by the learned III-Additional District Judge, Karachi-Central in Family Appeal No.8 of 2007 Yaqoob Ahmed v. Mst. Shaista, whereby she dismissed the appeal and maintained the judgment, dated 21-12-2006 passed by the learned IV-Civil Judge, Karachi-Central in G&W Application No.1151 of 2004 Mst. Shaista v. Yaqoob Ahmed whereby the application for custody of the minors filed by respondent No.1 was allowed. The facts leading rise to the present petition in brief, are that the respondent No.1 and the petitioner were married on 27-4-1997 and dower amount was fixed as Rs.50,

000. Out of wedlock two children namely: Baby Fariha, aged about six years and Master Maroof aged about four years were born. There cropped some matrimonial disputes in between the spouse as such the petitioner deserted her in the month of June, 2004 from his house and both the minors were snatched from her. It is further stated in the guardianship application that the petitioner who is running his business cannot look after the minors as such the welfare of the minors lies with the respondent and besides the welfare of the minors, she also possess the right of Hizanat to keep the custody of the minors with her. Respondent No.1, therefore, prayed for custody of both the minors. Petitioner was served with the notice who filed written statement, inter alia, denying the allegation levelled by respondent No.1 against him and has stated that he is in lawful custody of the minors being natural guardian and that the minors are getting education nicely and he is maintaining the minors nicely and properly and that even the respondent No.1 did not attempt to meet with the minors as such neither the welfare of the minors lies with respondent No.1 nor she possess any right of Hizanat because the minors have crossed the age of Hizanat. After pleadings of the parties, the learned trial Court framed the following points for determination:- (1) In whose custody the welfare of the minors in question lies? (2) Whether applicant is entitled for grant of custody of minors in question? (3) What should the order be? The parties led their evidence in pro and contra to their respective claims and the learned trial Court after hearing of the learned counsel for the parties allowed the guardianship application thereby directing the petitioner to hand over the custody of the minors to respondent No.1. The petitioner being highly aggrieved and dissatisfied with the judgment passed by the learned trial Court preferred Family Appeal bearing No.8 of 2007 Yaqoob v. Mst. Shaista, which was entrusted to the learned III-Additional District Judge, Karachi-Central, who after hearing the learned counsel for the parties dismissed the appeal, having no substance, hence the present petition. I have heard Mr. Raja Aftab Ahmed Khan, Advocate for the petitioner and respondent No.1 in person. The learned counsel for the petitioner vehemently contended that the minors have been admitted in well repute school and are getting education and are securing flourishing marks in their annual examinations and handing over the custody of the minors will interrupt their education which will be detrimental to the future of the minors and that the minors had given their consent before the learned trial Court to remain with the petitioner which consent of the minors has not been considered by both the lower Courts, as such the wishes of the minors have not been kept in consideration by both the lower Courts. According to him he is maintaining the minors nicely, who do not want to join the respondent No.1 being their mother as such no order against the wishes of the minors could be passed by the Court, as such judgments passed by both the lower Courts may be set aside. In support of his contention he has relied upon the case of Sughra Bibi v. Akhtar Hussain reported in 2007 CLC

474. The, respondent has contended that the orders passed by the learned lower Courts did not suffer from any misreading of the evidence as such the same could not be disturbed by this Court. I have considered the arguments advanced on behalf of the parties and have gone through the material available before me. Admittedly the present proceedings relate to the custody of the minors as such the prime consideration for determination of the lis in between the parties is, the welfare of the minors. The Court has to consider the welfare of the minors to handover the custody to the mother or the father of the minors, keeping in view all the material evidence and allied circumstances to determine as to with whom welfare of minors lies. In the present case the age of minor Fariha has been disclosed, in para.2 of the guardianship application, as six years and age of Master Maroof is four years, at the time of filing the petition before the learned Guardian Judge. Para.2 of the guardianship application has been admitted by the petitioner in para.2 of his written statement as such there is no cavil with regard to the age of the minors. According to section 17 of the Guardian and Wards Act, the welfare of the minors is to be considered by the Guardian Judge. For the purpose of consideration of the welfare of the minors, the evidence available on record is to be considered by the Court. In the present case the petitioner has examined himself as witness and in his evidence he has admitted that he is residing in a rented house and that he has two elder brothers who are married and they are residing in the same house in joint family system and that both the minors are getting proper education and they are being looked after at home by him. He has also admitted in his evidence that he is an electrician and is earning is Rs.12,000 per month, which is sufficient to maintain his children. He has also examined D.W. Mehmood Shah in support, of his version, who has deposed that petitioner is running electric shop and earning Rs.12,000 to Rs.15,000 per month and that both the minors are residing with the petitioner, who are getting proper education. The evidence, of the petitioner and his witness therefore, fully shows that the petitioner is running electric shop and obviously he used, to remain outside the house in connection with his electric work and according to the petitioner his parents are not surviving and he along with his two married brothers, is residing in joint family system, which shows that at his house no one is looking after the minors properly as could be looked after and maintain by real mother. The said evidence, therefore, shows that the welfare of the minors lies with their mother and being natural guardian she can maintain her minors with all love and affection in comparison of the others. So far is the maintenance of the minors is concerned, it is the bounden and primary duty of the father to maintain his children till the age of majority, in case of son, and till the marriage in case of daughter. As such non-availability of funds or paucity of the mother to maintain her children could not be treated as disqualification of the mother to refuse the custody of her children and father of the children is duty bound to maintain them. The contention of the learned counsel for the petitioner that the minors had consented before the learned trial Court to reside with their father, has not been given due consideration by both the learned lower Courts, in my humble opinion, is devoid of any force as the consent of the minors is of no much significance while determining the facts of their welfare; even the ages of the minors have been admitted by the petitioner in his written statement as such presently the age of minor baby Fariha could not be more than 10 years and age of Master Maroof could not be more than 8 years and said age being grown up age could not be treated as the age of maturity of the minors, so as to give importance to their consent. According to subsection (3) of section 17 of Guardian and Wards Act, 1890, the consent of the minor is only considerable if the minor is old enough to form initiate preference, the Court may consider that preference but in the present case, I do not find that both the minors are old enough so as to give any preference to their consent. The contention of the learned counsel for the petitioner that the minors are getting education properly and in case, if the custody of the minors is given to the respondent, the education of the minors will be disturbed. The contention raised by the learned counsel for the petitioner, in my humble opinion, is devoid of any force, for the reason that on mere assumption and presumption that the education of the minors will be disturbed, the custody of the minors could not be, refused to their mother, as discussed above, it is the primary duty of the petitioner to look after and maintain his children and the petitioner cannot avoid his responsibility to maintain the minors, in case, if their custody is given to their mother. The case of Mst. Sughra Bibi (supra), relied upon by the learned counsel for the petitioner, in my humble opinion, is distinguishable from, the circumstances of the present case as the said case was filed by the paternal-grandmother of the minors which is not the case in hand, as such the case of Sughra Bibi is not applicable to the circumstances of the present case. For the foregoing reasons, I do not find that the judgments passed by the learned lower Courts, suffer from any illegality so as to declare them as ultra vires to the constitution. The petition has, therefore, no merit and the same is hereby dismissed in limine. H.B.T./Y-4/K Petition dismissed.