1982 PLP 1821 (CLC)

Malik Shaukat Ali for Respondents 3 and

4. Dates of hearing : 18th, 31st March ; 1st, 8th, 15th, 19th, 22nd April and 6th May, 1981. This writ petition impugns the validity of the judgment of the learned Additional District Judge, Lahore, respondent 1, dated the 16th September, 1980. dismissing the petitioner's appeal against the judgment of the learned Guardian Judge, Lahore, respondent 2, dated the 12th June, 1980. granting the custody of the petitioner's minor sots to respondents 3 and 4.

2. Mst. Musarrat Hanif, respondent 3, is the mother and Muhammad Hanif respondent 4, is father of Mst. Shagufta Banc), petitioner. Ahmad Rafay Jaswal, respondent 5, is the second husband of the petitioner. In June, 1971. the petitioner was married to Lieutenant Arshad Aleem Shaheed of Pakistan Navy in Lahore at the house of respondent

4. After marriage the petitioner and Lieutenant Arshad Aleem Shaheed lived in Karachi where the matter was posted. On the night between the 6th and 7th December, 1971, in an encounter with naval forces of India, Lieutenant Arshad Aleem Shaheed laid down his life. The petitioner at that moment was pregnant with child. On the 7th June, 1972, she gave birth to Mashhood At‑shad in Ganea Ram Hospital, Lahore. Respondent 4, an officer of the Health Department, desired the petitioner to join nursing profession but she was not willing for it. In 1974 she joined the Pakistan Inter national Airlines Corporation as a telephone operator in Lahore Office. Respondent 5 was also serving as telephone operator over there. The petitioner and respondent 5 were transferred to Karachi in July, 1975 and they got themselves married, of course against the wishes of respondents 3 and 4 in September, 1976. When going to Karachi petitioner left Mashhood Arshad, who was about three years old, with respondents 3 and 4 who reared him up and arranged for his education. After receiving preliminary education in nursery school was admitted to Aitchison College, Lahore.

3. In March, 1978, a second son named Ahmad Tanzil, from respondent 5 was born to the petitioner. Upto that time petitioner's relations with her parents remained strained. After the birth of second son recon ciliation took place between them.

4. On the 10th January, 1980, the petitioner and respondent 5 are alleged by respondents 3 and 4 to have taken away the minor. Mashhood Arshad, by employing deceitful means. On the 13th January, 1980, respondents 3 and 4 made representation to the Martial Law autho rities against removal of the minor by the petitioner and respondent The authorities advised them to seek redress front Civil Court. On the 14th March, 1980, respondents 3 and 4 filed writ petition (No. 2480 of 1980) wherein this Court issued directions to the Guardian Judge to dispose of expeditiously their application for securing custody of the minor.

5. On the 19th March, 1980, respondents 3 and 4 moved application under section 25 of the Guardians and Wards Act, 1890, before the Guardian Judge, Lahore, for recovering custody of the minor. On the 12th June, 1980, the learned Guardian Judge, Lahore, respondent 2, accepted the application of respondents 3 and

4. Appeal filed 'by the petitioner against the order of the learned Guardian Judge was dismissed by the learned Additional District Judge, Lahore respondent 1, on the 16th September, 1980. Feeling aggrieved the petitioner has invoked the extraordinary jurisdiction of this Court.

6. The learned counsel for the petitioner raised the following points to dispute the legality of the orders passed by the learned trial and appel late Courts :‑-- (i) The trial Court had no jurisdiction to entertain and decide the application moved by respondents 3 and 4 as the minor was not residing within its territorial jurisdiction (ii) The learned Additional District Judge was not competent to hear the appeal ; (iii) Even the learned District Judge was not competent to hear the appeal as the application for getting custody of the minor had been moved on the 19th March, 1980, before enforcement of Guardians and Wards (Amendment) Ordinance, 1980 (XI of 1980) on the 26th March, 1980 ; (iv) Respondents 3 and 4 had no locus stand! to move application for securing custody of the minor as the minor had crossed the age of seven years ; and (v) Respondent 3 was estopped by the written compromise, Exh. P. 1, which he had executed agreeing to handing over the custody of the minor to the petitioner.

7. In order to appreciate the arguments of the learned counsel for the contending parties on the point of jurisdiction of the Court of the Guardian Judge at Lahore to entertain and decide the application for the custody of the minor sod whether respondent 4 was estopped from claim ing custody of the minor, it would be advantageous to describe the events and circumstances in which the minor was taken by the petitioner and her husband from Lahore to Karachi. No doubt when the petitioner went to Karachi in connection with her employment, she left the minor with respondents 3 and 4, who brought him up. Good relations which had been restored between the petitioner and respondents 3 and 4 after the birth of Ahmad Tanzil took a turn for the worse when respondent 4 refused to oblige the petitioner to advance her loan for the construction of a house on the plot which had been given to her by the Government in recognition of the services of her former husband: The petitioner and respondent 5 are alleged by respondent 2 to have taken away the, minor in order to pressurize him to advance them loan. On the 2nd January, 1980, the petitioner came to Lahore and stayed with respondents 3 and 4 for a week. On the 10th January, 1980, at about 2‑06 p. m. accompa nied by her brother, Humayun, the petitioner went to Anarkali in respon dents 4's car to purchase soma ready made garments for the minor. On way back she asked Humayun to drop her at the house of Salim Raza, brother‑in‑law of respondent 5 who lived in Rahmanpura, Lahore. At Salim Raza's house she told Humayun that she had decided to take the minor to Karachi. Humayun went home and broke the news to respon dent 4 who alongwith Humayun went to Salim Raza's house and protested to the petitioner for her intended action. As the petitioner refused to hand over the minor to respondent 4, the latter in retaliation took away Ahmad Tenzil with him. The petitioner lodged a report at Police Station Wahdat Colony Lahore, that respondent 4 and Humayun had kidnapped Ahmad Tanzil. The Assistant Sub‑Inspector of Police is alleged to have called respondent 4 and Humayun and told them that if they did not allow the petitioner to take the minor with her to Karachi he would arrest them. The Police Officer is said to have got executed by respondent 4 and Humayun writing Exh. P‑1, whereby respondent 4 abandoned his claim to the custody of minor. Subsequently, as mentioned earlier; respondent 4 approached Martial Law authorities and initiated legal action to recover the custody of the minor.

8. It has been found by the learned Guardian Judge that respondent 4 was made to relinquish his claim to the custody of the minor through the execution of the writing, Exh. P‑1, under threat of arrest and that his action in this behalf was not‑voluntary. The learned Additional District Judge has affirmed the finding in appeal. It seems that respondent 4 and Humayun became conscious of the fact that they had technically committed the offence of kidnapping Ahmad Tanzil and, therefore, thought it fit to get themselves out of the unpleasant situation by agreeing to execute the writing, Exh. P.

1. Hence the writing Exh: P. 1 cannot work as estoppel against him.

9. In view of the removal of the minor from the custody of respon dent 4, who was his de facto guardian, in the above fashion, it would be open to the petitioner to assert that the minor is permanently resident of Karachi and as he had no intention of shifting from there to Lahore at least for an indefinite period, the Lahore Court bad no jurisdiction to try the case. The authorities cited by the learned counsel for the petitioner, namely, Shaikh Muhammad Rashid v: Mst. Sarnigar Qaiser Sheikh P L D 1980 Lah. 61, and Duduwala and Co. v. Industrial tribunal A I R 1958 Raj. 20, are not appellant. On the other hand, the learned counsel for the contesting respondents 3 and 4 maintained that the minor's residence at Karachi could at best be describ ed to be casual in view of the minor having beep taken away from Lahore. Respondents 3 and 4 brought evidence on the record to show, and this fact could not be given a lie to by the petitioner, that the minor had all along been putting with respondents 3 and 4 and receiving education at Lahore. The learned counsel for the contesting respondents referred to Muhammad Siddigue v. Mst. Aziz Bibi P L D 1970 Lah.

596. Mst. Nazir Begum v. Ghulam Qadir Khan A I R 1938 Lab.

313. Ali Akbar v. Mst. Kaniz Maryam P L D 1956 Lab. 484, Mahmooda Khatoon v. Syed Zainu‑l Hasnain Rizvi P L 0 1958 Kar. 150 and Mst. Zubaida Begum v. Chaudhri Ghulam Rasool P L D 19.59 (W. P.) Lab. 967, in support of his contention that the ordinary place of residence of the minor would be taken to be Lahore because he bad continued to stay there but for his removal by .the petitioner to Karachi. Again he cited Mst. Niaz v. Fazal Ilahi P L D 1953 Lab. 442, Fahimuddin Khokhar v. Mst. Zaihunnisa P L D 1968 Kar. 774 and Nooriehen Begum v: Mufti Muhammad Sami P L D 1956 Kar. 397, to confirm that the guardian from whose custody the minor is removed includes de facto guardian as respondent 4 was. He quoted from Manoo Ali v. Hawabi A I R 1937 Rang. 63, Allah Ditta v. Em0peror A I R 1941 Bom. 334 and Mst. Atia Waris v. Sultan Ahmad Khan P L D 1959 Lab. 205, that custody meant actual custody and not .constructive custody. In these circumstances he was right in saying that the minor having been removed from Lahore from the custody of respondent 4, who could be treated as his de facto guardian, an, application under section 25 of the Guardians and Wards Act for securing custody of the minor was entertainable by Court at Lahore.

10. No objection touching the jurisdiction of the learned Additional District Judge or of the learned District Judge, in view of the enforcement of the Guardian and Wards (Amendment) Ordinance, 1980, was raised by the petitioner when her appeal was heard. Therefore, the learned counsel for the respondents 3 and 4 contended that objection relating to the question of jurisdiction could not be raised in writ jurisdiction before this. Court. He relied upon the rule laid down in Hakim Abdul Mqjid Shah v. The Claims Commissioner Pakistan Lahore P L D 1962 Lab. 337, Messrs Chiragh Din. Ghulam Muha imud v. Messrs Muhammad Rdmzan, Muhammad ' Ismail, Muhammad Ibrahim P L D 1962 Lab. 714 and Mst.. Sartaj Begum v. Karachi Municipal Corporation P L D 1962 Kar. 785 in this behalf. He also adverted to Karam ,Dad Khan v. Muhammad Yaqub P L D 1967 Lab. 709 Majlis Intizamia, Jamia Masjid, Ghulam Abad Colony, Lyallpur v. Secretary to Government of West Pakistan P L D 1965 Lab. 622, Miran Bakhsh v. Settlement and, Rehabilitation Commissioner (Enforcencent), Lahore P L D 1967 Lab. 81, Muhammad Hussain v. Fazal Karim P L D 1969 Lab. 694, Idris Ahmad Khan v. Syed Ali Zahid Raza P L D 1972 Kar. 493 and Moqbool Ahmad Maqbool v. The Province of Punjab 1971 S C M R 727, enunciating the rule that objection regarding jurisdiction not raised before a Court at proper time when the as was heard could not' be allowed to be taken afterwards in appeal or revision. 1t is too late in the day for the petitioner to take exception to the jurisdiction of the learned appellate Court. Even otherwise her objection is not sound on merits. The contention of the learned counsel for the petitioner that the Additional District Judge could not constitute District Court which alone under the amended provisions of section 47 of the Guardian and Wards Act was competent to hear appeal is not correct. District Court accord ing to section.4 (4) of the Guardian and Wards Act has the same meaning as is assigned to the expression in the Code of Civil Procedure. Within the purview of the Code the Additional District Judge exercises all the ewers of the District Court. Under section 6 of the Punjab Civil Courts 1962 an Additional District Judge discharges such Ordinance, of a District Judge as the latter assigns to him and in the discharge of those functions he exercises the same powers as 'the District judge.

11. The application for securing custody of the minor was moved by respondents 3 an14 on the 19th March, 1980. The Guardian and Wards (Amendment) Ordinance, 1980 (XI of 1980), conferring jurisdiction on the District Court to hear appeals from orders passed by an officer sub ordinate to the District Court came into force on the 26th March, 1980. The application was decided on the 12th June: 1980. Therefore, the appeal was to be heard by the District Court and not by this Court be cause the application was decided when the Ordinance was in farce. The authorities Gondicato Hypolilo Constanclo Noronha v. Damji Devji P L D 1‑954 P C 22, Muhammad Boota v. Farzand Ali 1980 C L C 1124, Haji Noor Muhammad Khan v. Haji Muhammad Ali Khan P L D 1980 Pesh. 180, Allah Rakha v. Additional Deputy Commis sioner 1980 C L C 1386, Pakistan v. Devachand Muljimal P L D 1968 Kar. 107, the Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 and Hassan v. Fancy Foundation P L D 1975 S C l., cited by the learned counsel for the petitioner supply refer to the continuance of substantive right of appeal if the law was changed during pendency of action. They do not provide for the hearing of the appeal by the original forum if the law changed the forum. Therefore, they fail to pursuaded this Court to hold that the District Court could not exercise jurisdiction conferred upon it by the amending law.

12. The learned counsel for the parties were at one on the point that respondents 3 and 4 and for that matter even the petitioner had no legal right to claim the custody of the minor who was above the age of seven years when respondents 3 and 4 initiated action. The sole factor to be kept in view for determining the question of the minor's stay with one or the other party, as stated by both the counsel was his welfare. The learned counsel for respondents 3 and 4 recounted the past conduct of the petitioner and urged that she had neglected the minor in favour of her own enjoyment of life. He maintained that the minor had been brought up, educated and looked after by respondents 3 and 4 and the petitioner had cared to pay neither her attention to nor expenses of the minor. He mentioned that the minor had been studying in Aitchison College, Lahore, which, according to him, was the best available institu tion in the country and it was the interest of his welfare that he‑should continue to receive education here while living‑ with respondents 3 and

4. The learned counsel for the petitioner maintained that when the petitioner joined service she was getting salary of Rs. 400 per meanest but by now she was drawing pay of Rs. 2,000 , per mensem and living in her own independent house. The pay of her husband was Rs. 2,600 per mensem. The minor at the moment is studying in Kalsoom Bai Valika Airport Model School, Karachi Airport, arid has obtained a position in his class. He is stated to be properly looked after by the petitioner.

13. The learned counsel for the respondents 3 and 4 maintained that the finding of fact to the effect that the welfare of the minor lay in his living with respondents 3 and 4 recorded by the Courts below cannot be interfered with in writ jurisdiction unless the finding is shown to be unwarranted or to have been based on no evidence, misreading of evidence, ignorance of material evidence, or on the assumption that some evidence exists on the record which in fact, does not exist or by keeping out of consideration a piece of evidence which could not have been kept out of consideration as held in Muhammad Hussain v. Pir Salah‑ud‑Din (P L D1960 Lah. 1130), Habibullah Khan v. Election Tribunal (P L D 1962 Lah. 468), N. M. Khan v. Chief Settlement and Rehabilitation Commissioner, Pakistan (P L D 1962 Lah. 797), The Commis sioner v. Mian Sher Muhammad (1972 S C M R 395) and Noor v. Settlement and Rehabilitation Commissioner (1969 S C M R 517).

14. The learned Guardian Judge as also the learned District Judge have worked under the erroneous impression that the petitioner by re marriage had lost right of custody of the minor and that respondent 3 was the person entitled to his custody under Muslim Law. Actually the minor being above the age of seven years respondent 3 had no inherent right under the Muslim Law to claim custody of the minor in preference to the petitioner. As already mentioned the sole consideration for keep ing his custody is as to where his welfare lies. When the petitioner joined service she was placed in difficult circumstances in consequence of the death of her husband. Her salary was not large. Being young and having become widow just six months after marriage she was thinking of going in for second marriage. In such a state of affairs she could not have possibly taken the minor alongwith her to Karachi and might have considered it safe to leave him with her parents, respondents 3 and

4. Now that the minor has approached the age of adolescence and she is financially better off and able to support him, welfare of the minor would lie in his living with his mother rather than with respondents 3 and

4. Love and affection which the mother can bestow upon him is income parable to the love and affection of respondents 3 and

4. The petitioner can afford to give him education as is necessary to be acquired under the circumstances. Almost a year and a half has passed by since be is living with the petitioner. Living together of mother and son for so long a time must have created such an affectionate relationship between the two as it looks rather cruel to take him away from the mother. Such a separation at this formative age may leave a permanent psychological adverse mark upon him. It is in the interest of his welfare that he should continue to stay with the mother. In these circumstances the finding of the learned Courts below to the contrary cannot be endorsed. This petition is accordingly accepted; the judgment of the learned Additional District `' Judge is set aside and the petitioner is allowed to retain the custody of her minor son. The parties, are, however left to bear their own costs. Writ petition accepted.