2018 PLP 862 (MLD)

JAWAD HASSAN, J.

Through this petition, the Petitioner has sought setting-aside of impugned judgment and decree dated 01.06.2017 passed by the learned Judge Family Court, Sambrial wherein custody petition of the Petitioner was dismissed and appeal filed thereagainst was also dismissed by learned Additional District Judge, Sambrial vide judgment and decree dated 11.10.2017.

2. Succinctly, the facts for the disposal of this constitutional petition are that Faisal Mushtaq, the Petitioner filed application for custody of minors namely Manal Faisal and Zamar Faisal with the averments that Nikah between the Petitioner and the Respondent No.1 was performed on 16.08.2009 according to Muslim Rites. Out of this wedlock, the minors Manal Faisal and Zamar Faisal daughters were born. Both the parties filed petitions for the custody of minors. The learned trial court dismissed the petition for custody of vide judgment and decree dated 01.06.2017. Feeling aggrieved, the Petitioner preferred appeal before the learned Additional District Judge, Sambrial, who modified the impugned judgment and decree vide judgment and decree dated 11.10.2017, whereby he allowed the Petitioner to meet the minors and chalked out a meeting schedule accordingly and prayer of the Petitioner for restoration of permanent custody of the minor was turned down. These concurrent findings of facts have been assailed through this constitutional petition.

3. Learned counsel for the Petitioner submits that while passing the impugned judgments and decrees, both the Courts below have violated the provisions of Muhammadon Law as well as judgments of Supreme Court of Pakistan which were mentioned by both the Courts below however, the same were overlooked. He further adds that the Respondent No.1 contracted second marriage as such she loses her right to retain custody of the minor with her. He next states that judgments and decrees are against the welfare of the minor and also against the dictum laid down in "Shabana Naz v. Muhammad Saleem" (2014 SCMR 343) wherein the mother has been held disentitled for the custody of minor girl when she takes second husband who is not related to the minor.

4. Conversely, the counsel for the Respondent No.3 has supported the impugned judgments and decrees by contending that both the courts below have correctly appreciated the evidence on record and rightly evaluated the same in its true perspective, therefore, no exception can be taken to it in constitutional jurisdiction. In support of his contentions, he has placed reliance upon Zafar Hayat v. Mst. Shamim Bibi and 2 others (2009 CLC 697), Mst. Bakhat Bibi v. Bahadur Ali and others (2015 CLC 1260), Mehmood Akhtar v. District Judge Attock and 2 others (2004 SCMR 1839), Mst. Rabia Bibi v. Abdul Qadir and others (2016 CLC 1460), Muhammad Ayub v. Mst. Nasim Begum and another (1996 CLC 1534). While relying upon the above said judgments the counsel for the Respondent No.3 has argued and laid much emphasis that there is no substitute to real mother. The lap of mother was cradle of God, remarriage of the mother, ipso-facto would not disentitle her from retaining the custody of minor. The poverty of mother also was no ground to disentitle her from the custody of the minor and the Islamic law was subservient to the welfare of the minor. Lastly, he prayed for dismissal of the writ petition.

5. Arguments pro and contra have been heard and record perused.

6. It is reflected from perusal of record that both daughters are minors. It is also evident from record that the Respondent mother has been looking-after her minor daughters ever since their birth and maintaining in a good environment. It has come on record through cogent and confidence inspiring evidence that the application for custody of minors was filed after the fixation of maintenance allowance against him. Therefore, it is safely presumed that the Petitioner was least interested in the welfare of the minors and he filed the application for custody of minors in order to frustrate the decree for maintenance allowance. Both the Courts below have observed that the minors are in the custody of the Respondent No.1 who is upbringing them properly and getting them education in the private schools. Moreover, the Respondent No.1 is the real mother of the minors and there is no substitute of mothers on the earth. The Courts while determining the custody of minors always consider the welfare of the minors in mind while deciding the cases. Reliance in this respect is placed upon Mehmood Akhtar v. District Judge, Attock and 2 others (2004 SCMR 1839), wherein it has been held as under:-- "The right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammad Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of the question of custody." He has also placed reliance upon Mehmood Akhtar v. District Judge Attock and 2 others (2004 SCMR 1839). Record also transpires that the Respondent No.1 is an educated lady and real mother of the minors. It also goes without saying that there is no substitute of mother's lap, therefore, an association for female children with their mother is much important, as compared to the father. Whereas the Petitioner is a Government servant and he remains at the place of his posting from 08.00 a.m. to 04.00 p.m. in Lahore and being an employee can be transferred at any place, therefore, cannot give proper time to the minors, therefore, he is not entitled for the custody of minors. The poverty and poor financial status of mother, does not disentitle her from the custody of the minor. Reliance in this respect is place upon Mst. Rabia Bibi v. Abdul Qadir and others (2016 CLC 1460), wherein it has been held as under:-- "No substitute to real mother. Lap of mother was cradle of God. Remarriage of the mother, ipso facto, would not disentitle her from retaining the custody of minor. Poverty of mother was no ground to disentitle her from the custody of the minor." The Superior Courts in number of judgments have held that there is no substitute of mother and no one could take care of minors more than their real mother for being their first institution and depriving minors of the company of their real mother would create deprivation in their lives, which could not be restored back. Reliance in this respect is placed upon Amjad Masih v. Mst. Bushra Bibi, (2010 YLR 1468), Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others (2006 MLD 493), Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839 and Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others (2006 MLD 493).

7. It is evident that the concurrent findings of facts have been passed against the Petitioner. It is settled proposition of law that this Court does not interfere with the findings of facts arrived by the primary Courts when it is satisfied that the findings of both the learned Courts below are reasonable and were not arrived at by disregarding any of the provisions of law or any accepted principle concerning appreciation of evidence. Learned counsel for the Petitioner could not point out that the findings of fact recorded by both the learned Courts below, on the face of it, are against evidence or were patently improper or perverse that to accept it could amount to perpetuating a grave miscarriage of justice. The constitutional jurisdiction is ordinarily discretionary in character. He who seeks equity must come with clean hands. The concurrent findings of both the learned Courts below on the question of fact cannot be interfered by this Court in view of the latest pronouncement of Hon'ble Supreme Court in case titled "Waqar Haider Butt v. Judge Family Court and others" (2009 SCMR 1243). No infirmity or illegality has been pointed out in both the impugned judgments of the learned Courts below, which are in accordance with law and the same are hereby maintained. In view of the above, the petition in hand is without any merits, the same is hereby dismissed. MQ/F-4/L Petition dismissed.