1998 PLP 1697 (MLD)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

This petition has arisen, out of a dispute, pending between petitioner Mst. Zar Bibi and respondent No. 1, Haji Malik Abdul Ghaffar, in respect of the custody of minors; Bibi Ram Jana, Bibi Na Dana, Bibi Malka and Bibi Alam, daughters of Haji Shah Jehan. Precisely the facts of the case are that Petitioner Mst. Zar Bibi, was the first wife of Haji Shah Jehan, father of minors. He contracted a second marriage with Bibi Sakina, who died in the life time of her husband, leaving behind five daughters, including the minors and Bibi Pari Gul, who has now been married. It is stated that 4/5 years back, father of minors also died and presently the minors are living with their step-mother Mst. Zar Bibi (Petitioner). On 11th July, 1994, respondent No. 1, who is the real uncle of minors, being the brother of their father, filed an application, for his appointment as (Guardian) of the Person and Property of minors. Application was squarely contested by Petitioner. Initially the application was dismissed on 14th November, 1994, by the trial Court. Although this order was set aside subsequently, but for sake of reference, relevant portion therefrom, is reproduced hereinbelow:-- The respondent Malik Abdul Ghaffar, challenged the above order before this Court in Civil Miscellaneous Appeal No. 18 of 1994, which was allowed on 21st March, 1995, whereby the case was remanded to trial Court. On remand, the parties produced respective evidence. During pending proceedings before trial Court, on 21-11-1996, the respondent filed an application, stating therein, that he is not interested to become the Guardian of the Property of minors, therefore, he may be appointed Guardian, only to the extent of their person. Learned trial court while disposing of the application, took note of the fact, at the time of giving findings on issue No.4, that respondent has submitted an application, that he is not interested in the Guardianship of the property of minors and he will spend from his own means, for the food, clothes, education, health and other requirement of minors and did not take anything from the income of minors, therefore, decided this issue in negative. It is to be noted that in findings, on issue No.6, the trial Court has observed that the minors were produced in the Court and they were asked for their Guardianship. They replied that they are happy with respondent No.l and did not want to go with the applicant.' Thereafter it was observed that' the Court understands this better that the welfare of the minors lies with the applicant being the paternal Uncle of minors. It is admitted fact that respondent No. 1 is the step-mother of minors. The minors could not be the better Judge of their own-Consequently the application filed by respondent No. 1, was allowed vide order, dated 30th November, 1996. Petitioner preferred an appeal before the District Judge, Quetta, which came-up for disposal on the file of Additional District Judge-IV, Quetta, Incidentally, during pendency of appeal. son-in-law of petitioner namely Moula. Dad, who is married with her real daughter Bibi Jawahir, was apprehended in a case registered by police, concerning allegations of gambling den, which was being run adjacent to his hotel, situated at Hanna Therefore respondent's counsel submitted an application, to bring on record, these documents The application was opposed by Petitioner. However, learned Appellate Court took into consideration this fact as well and consequently dismissed the appeal on 12th September, 1997. As such, instant Constitutional Petition has been filed. Mr. Naeem Akhtar, learned counsel argued that trial as well as Appellate Courts, erred in law, in granting relief to respondent, by appointing him as Guardian of the Property of minors, when he himself had submitted an application before the Court that he be only appointed Guardian of the person of minors. He further stated that evidence so brought on record clearly indicates that petitioner, though is the step-mother of minors, but she is looking after them to the best of their interest and welfare. She has already got transferred the shares of the property left by late Malik Shah Jehan on their names. All the four daughters have been admitted 'in School, where they are receiving education. As far as safe-guard to their property is concerned, that has already been ensured by this Court, while disposing of Civil Revision No.16/96, in pursuance whereof, petitioner has been directed to submit detailed statement of Income, as well as the record of Produce of land, belonging to the minors and the expenditure incurred by her on the welfare of minors, on expiry of every six months, before the trial Court. The respondent himself is a man of 90 years, therefore, he would not be in a position to watch the interest and welfare of minors in a befitting manner, therefore, the Judgments of both the courts below, deserve interference, as having been passed, contrary to evidence on record. On the other hand, Mr. Tahir Muhammad Khan, learned counsel for respondent No. 1, stated that Petitioner has no locus standi to retain the custody of minors, because being the step-mother, she does not figure amongst the relatives of minors, as per the Muhammadan Law, who can claim the custody as well as Guardianship. Respondent is real Uncle, therefore, comparing to Petitioner, he would be in a better position to ensure the welfare of the minors. We have heard the parties' counsel and also perused the record of case, so made available. It is to be noted that under section 8 of the Guardian and Wards Act, the Guardian Judge is empowered to appoint a person desirous of being, or claiming to be, the Guardian of the minor, or any relative or friend of the minor, or the Collector of the District or other local area within which the minor ordinarily resides or in which he has property, or the Collector having authority in respect to the class to which the minor belongs. If this section is read alongwith para. 355 of the Principles of Muhammadan Law, by F.D. Mulla, in default of mother and the female relation mentioned in para. 353, the custody of minor belongs to the persons namely; the father; nearest paternal grandfather, full brother, consanguine brother; full brother's son; consanguine brother's son; full brother of the father; consanguine brother of the father; son of father's full brother; and son of father's consanguine brother. This para further provides that no male is entitled to the custody of an unmarried girl, unless he stands within the prohibited degrees of relationship to her. Undoubtedly respondent No. 1 being the brother of the father of minors, is entitled for their custody, if it is in their welfare. As far as the locus standi of petitioner Mst. Zar Bibi is concerned, it cannot be brought under challenge for the reason that she has not moved an application for her appointment, as Guardian of the person and property of minors. Since respondent No. 1, himself had moved an application, therefore, it' was his obligation to show that it would be in the welfare of minors, if he is appointed as Guardian of their person and property, as such, the objection of Mr. Tahir Muhammad Khan, Advocate, that petitioner has no locus standi to retain the custody of minors, has no force. Had petitioner filed independent application, then objection raised by learned counsel, must have been considered in its real perspective, keeping in view the relevant provisions of law, referred to hereinabove. It is also to be noted that pending proceedings before the trial Court, as well as the Appellate Court respondent himself submitted an application on 21st November, 1996. wherein he relinquished the relief of his appointment, as Guardian of property of minors, but despite filing of this application, both the Courts below, have appointed him as Guardian of property of minors as well, therefore, on viewing the impugned orders, from this angle, no other conclusion can be drawn, except that same have been passed without lawful authority. By now; it is well-settled that while disposing of applications under sections 17 and 25 of the Guardian and Wards Act, the supreme consideration should be the welfare of minors, coupled with their own wishes, as it has been held in Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others (1985 SCMR 1367). Relevant para. therefrom is reproduced hereinbelow:-- "From the perusal of the order of the Guardian Judge, it seems that the main consideration that prevailed with him was the factum of second marriage contracted by the petitioner with a stranger. Prima facie, however, the learned Judge did not give due regard to the wishes of the minor himself and seems to have disregarded the same on considerations, which, in our opinion, require re-examination It is axiomatic that in the matter of appointment of a guardian the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a Court of law for the decision of such cases. It was stated before us that the minor is now thirteen years of age and he appeared to us to be capable of making an intelligent preference on the question in dispute. The other point that requires' consideration is whether in case of a male child, marriage of his mother with a stranger would be a relevant consideration for depriving her of the custody of the minor." As it has been observed hereinabove that before the trial Court, minors were produced and on enquiry, the replied that they are happy with petitioner and do not want to go with applicant. Similarly in appeal proceedings, in pursuance of an application submitted by petitioner, the minors were produced and they have shown their willingness, to stay with their step-mother- But the Appellate Court observed that it is however, the duty of the Court to decide about further well-being of the minors to which of course the Court can better decide, considering all the other aspects, which cannot be thought of by minors due to little exposure to practical problems of the real life. It is equally important at this stage, to refer to another judgment reported in 1981 CLC 78 (Mst. Akbar Bibi v. Shaukat Ali). In this judgment, age, sex and intelligent preference of the minor was examined in the light of material placed on record, to find-out; whether a case has been made out for giving respondent (father) the custody of minors and thereafter it was observed that' as regards the 'age' consideration, Mst. Irshad Iqbal aged 16 years, is a virgin girl who had undeniably attained the age of puberty. While the other minor girl whose handing over is directed on her attaining the age of five years is still a baby of three years. In these given circumstances, it is the mother who ought to have the custody of the aforesaid girls rather than the father who is living as a widower with his major son who having an inimical attitude towards the minors seems responsible for the trouble between the husband and wife and naturally cannot be expected to give that care and attention to the girls as the mother would.' Undoubtedly in the case in hand, petitioner is the step-mother of female minors, but they are living with her for the last more than 8 years, when their real mother Mst. Sakina expired away, as per the statement of petitioner given before trial Court. All the minors were examined thrice by trial and appellate Court, who on every occasion, insisted to stay with their step-mother, instead of preferring to live with their real Uncle (respondent). It is noteworthy that in his statement, he has given his age to be of 90 years and had also stated that his family is residing at Quetta, and not in Hanna Valley. Moreover, the minors have developed intimacy with petitioner and even otherwise being female minors, it is necessary that they should stay with a female, instead of male This very point came for consideration in the case of Captain S.M. Aslam v. Mst. Rubi Akhtar (1996 CLC 01), where it was held that while dealing with applications under sections 25 and 17 of Guardians and Wards Act, it is not the duty of Guardian Judge to find out the right of mothers or fathers regarding custody of minors but- the real duty of the concerned Court is to search out in whose custody the welfare of minors lies. Large number of facts have to be taken into consideration with reference to the real concept of welfare' of minors, such as factors of health, education, mental affiliation of minors with custodians, religion, sex, age, expected effects of remarrying by the divorcee or divorce upon minors etc. Male minors and female minors have different psychologies. The female minor requires longer association of her mother till for puberty on account of several reasons. For example, in our society, the female child is usually bashful, mostly tender hearted and symbol of. delicacy in her nature. Such female child is not expected to disclose the signs of awakening of her sex to her father. On account of this reason, a female minor must remain with her mother provided she does not lose her right of Hizanat on account of certain established rules and principles." As far as protection of the right of minors in the property is concerned, it is to be observed that petitioner before trial Court produced Fard-e-Intiqals (Exhs. R/ I to R/3) which shows, that the property has been duly mutated in their names in revenue record. It has also come on record that minors are also receiving education, as per Mark-1, produced before the trial Court, according to which Bibi Na Dana, Bibi Malka and Bibi Alam, were admitted in Government Girls Primary School, Hanna, on April 10th; 1993, March 15th, 1994 and March, 15th 1994, respectively. Now turning towards the findings of trial Court, with regard to the welfare of minors, it is to be seen that without disclosing and referring to the intelligent performance of minors and document evidence, referred to hereinabove, it has been concluded that the Court is better to decide the welfare of minors, because they had little exposure to practical problems. It may be noted that it is a case of its own nature, where the father had already died and step-mother had not contracted second marriage, instead she is looking after the step children with all love and affection, as it is indicative from the statements of minors, which they re-affirmed thrice before trial and Appellate Court. Therefore,' the findings of the Courts below are not based on correct application of law, as well as appreciation of evidence on record. It would be important to note that during pendency of appeal, the incident with regard to involvement of son-in-law of petitioner namely Moula Dad was also considered an adverse factor against petitioner to deprive her from the custody of minors, without providing her opportunity to rebut the allegations, or waiting for the result of criminal case, if genuinely it has been registered against her son-in-law.- Mr. Tahir Muhammad Khan, learned counsel also referred to PLD 1975 Lah. 86, and 1981 CLC

84. We have gone through these judgments, but the principles of law, discussed therein, are distinguishable on facts, to view of the peculiar circumstances of instant case, as such, these Authorities have not rendered any help to him. Next question for consideration would be; whether in exercise of Constitutional jurisdiction, interference in findings of facts, can be made by High Court or otherwise? To over-come this difficulty, principle of law discussed by Hon'ble Supreme Court in the case of Mst. Mahmooda Begum v. Taj Din (1992 SCMR 809) can be invoked, wherein it has been laid down that 'findings of facts recorded by a Tribunal of special jurisdiction in respect of matters, exclusively within-its competence, normally is not be interfered unless, there had been a serious misreading of mis-appreciation of evidence on the part of Tribunal or there had been failure on its part to take into consideration material facts or to apply the statutory law or any principle or rule of law, as laid down by the superior Courts. Thus, for the foregoing reasons, we are of the considered opinion that both the Courts below, have passed impugned judgments, without taking into consideration the intelligent preference of minors, evidence on record, that petitioner can look after the welfare of minors better than respondent No. 1, who being a male member and of advance age, would not be in a position to look after the female minor girls, as such, the same are without lawful authority and jurisdiction. Consequently, writ is issued, as prayed for, declaring the impugned judgments, as of no legal effect. Parties are left to bear their own costs. A.A./689/Q Petition accepted.