1992 PLP 1573 (CLC)

Date of hearing: 28th October, 1990. This Constitutional petition is directed against the judgment, dated 22nd‑of February, 1990 passed by the learned Addl: District Judge, Kasur, whereby he dismissed the appeal of the present petitioner against the judgment dated 4‑5‑1989 of the learned Guardian Judge, Chunian, through which he handed over the custody of the minor girl to respondent No.1 The facts briefly are that the petitioner entered into a marriage contract with respondent No.l in the year 1982. Mst. Tasnima Bibi, a daughter, was born in the year 1984 out of this wedlock. The relations between the parties became strained and accordingly, Talaq was effected between them on 12‑4‑1986. The petitioner moved an application for the custody of child on 15‑10‑1980. During the pendency of these proceedings, the minor was given in an interim custody of the petitioner for a meeting purpose and on her failure to produce the minor back, a criminal case was registered under section 363/188, P.P.C. on the same date with the Police Station Chunian. However, this criminal litigation came to an end on 29th of January, 1989 by an order passed in Writ Petition No.150/89 filed by the petitioner seeking quashment of the aforesaid case. It was agreed that the matter of custody of the child would be decided by the Guardian Judge and till such time the minor would remain in the interim custody of the petitioner. Subsequent to this aforesaid order, respondent No.l moved an application for the custody of minor on the 2nd of February, 1989. The petitioner controverted the stance and the following issues were framed:‑ (1) Whether the petition is not competent in its present form? OPR. (2) In whose custody tics welfare of the minor most? OPPs. (3) Relief. The parties produced their respective evidence. The learned Judge Family Court, without adverting to the evidence brought by the petitioner on the record, accepted the respondent's application through judgment/decree dated .1‑5‑1989 mainly on the ground that earlier a case was registered against the petitioner under section 363/188, P.P.C. at the instance of the Court and secondly on another date the petitioner attributed the absence of the minor by stating that she was suffering from measles while in fact she was admitted in hospital due to Diarrhoea and high grade fever. This conduct, according to the learned Judge Family Court, disentitled her from the custody of the minor. The appeal against this judgment/decree was also dismissed by the learned Additional District Judge, Kasur, mainly on the ground that the petitioner's financial position wits not sound enough to maintain the minor. Hence, this Constitutional Petition. I have considered the contentions of the both the parties. Since the case has been argued at length, I am disposing of this Constitutional petition as a Pacca matter. It is to be noticed that the learned Judge Family Court was mainly swayed away with the registration of criminal case against the petitioner which had already been quashed by this Court in Writ Petition No.150/89. The two Courts below have not considered at all the evidence brought by the petitioner on record. Chiragh Din, an independent witness, who is related to both the parties, has corroborated the petitioner in her evidence that she is in sound position to maintain the minor. Even otherwise the custody cannot be refused to the petitioner simply on the ground that she is a lady of less means. There is ample evidence on record that the lady is not only being supported by her five brothers but also independently doing her sewing work. 1t has been held in case of Mst. Feroze Begum v. Lt: Col. Muhammad Hussain (1983 SCMR 606) that mere inability to maintain children shall not be a ground for depriving the mother of custody of the minor. There is another important aspect of the case which cannot be lightly brushed aside that the minor's up bringing would be adversely effected if she is given in the custody of respondent at this impressionable age because of his complete ignorance about religious teachings. He while appearing as PW1 has admitted as under:‑ On the contrary, the position of the petitioner in this regard is otherwise. She is better equipped in the reading of the Holy Qur an. She has not married again after her Talaq nor she intends to do so. In these circumstances, keeping in consideration the young age of the minor and the fact that the petitioner has not married and the other evidence on record, I am of the view that the welfare of the child would be best suited if she remains with her mother. Accordingly, this writ petition is accepted and both the orders of the Courts below are set aside as having been passed without lawful authority. There shall be no order its to costs. .A.A./S‑22/L Petition accepted