1988 PLP 2196 (CLC)

This is a civil revision calling in question the legality of the order of Additional District Judge, Lahore confirming the order of the Guardian Judge, Lahore whereby the custody of two minor children was granted to their father.

2. The petitioner was married to the respondent on 10‑9‑1969 at Lahore. Soon after the marriage the spouses went to Iran where the respondent took employment with the Iranian Air Force. Apparently their marriage was not a success. Ultimately after the parties returned to Pakistan it ended in a divorce in August 1979. The petitioner gave birth to three children but I am not concerned with the youngest child as its paternity is disclaimed by the respondent. The eldest child is a daughter by the name of Naghma Ehsan who is now 13 years of age. Next to her is a son by the name of Raees Ahmad who is now about 7 years of age. Both these children were in the custody of the mother when, on 23‑2‑1980, the respondent moved an application before the Guardian Judge for their custody. In his application, apart from alleging that the conduct of the petitioner was responsible for the break‑up of the marriage, the respondent alleged that the environments in which the petitioner was keeping the children coupled with the fact that she was planning to remarry, were unfavourable to the minors and that it was in their welfare that their custody should be handed over to him. He further stated that the petitioner was keeping the children away from him against his will.

3. The application was resisted by the petitioner. She denied that she had been divorced by the respondent or that she intended to marry again. She claimed that despite non‑payment of the maintenance by the respondent she was looking after the children satisfactorily and that it was not in their interest that their custody should be granted to the respondent.

4. On the pleadings of the parties the learned Guardian Judge framed the following issues:‑ (1) Whether the welfare of the minors lies in the custody of the petitioner? (2) Whether the petitioner has no cause of action? (3) Relief.

5. After considering the evidence of the parties as well as the preference indicated by Naghma Ehsan the learned Guardian Judge found that it was in the welfare of the children that their custody should be granted to their father. He decided issue No.2 also against the petitioner. Accordingly, he awarded the custody of the children to the respondent. The petitioner preferred an appeal before the learned Additional District Judge who affirmed the finding of the learned Guardian Judge and dismissed the same.

6. A preliminary objection has been raised on behalf of the respondent to the competency of the Civil revision. His objection is two‑fold. First, it is contended that no revision lies against thel order of the Additional District Judge as by virtue of the provisions of section 17 of the Family Courts Act the Code of Civil Procedure is inapplicable to the proceedings held by a Family Court. This contention runs counter to the view taken by this Court in Parveen v. Muhammad Ashar (P L D 1975 Lab. 334) and for the reason I am unable to accept it. Second, it is submitted that the findings of the learned Courts below on the issue of welfare of the minors are based on appreciation of evidence and even if they are wrong this Court cannot interfere with them. It is no doubt true that a finding of fact cannot be reopened in revisional jurisdiction but then if the finding is based on inadmissible evidence or irrelevant consideration, this Court is competent to revise it for that would be an illegality in the exercise of jurisdiction.

7. One of the main considerations which persuaded the learned Additional District Judge in depriving the petitioner of the custody of the children was that she did not enjoy good reputation and for that reason she was changing her residence after short intervals; further she was living all alone without any relative and that this circumstance cast great doubts on her character. It is to be noticed that in his application under section 25 of the Guardians and Wards Act the respondent did not plead that the petitioner was a woman of easy virtue or that her character was not good or that she was living all alone. All that he stated in the application was that it was the conduct of, the petitioner that had forced him to end the tie of marriage; that she was intending to remarry and that he was in a better position to bring up the children. Had there been any flaws in the character of the petitioner it is unlikely that he would have failed to mention them in his application.

8. To deprive a mother of the custody of her children on account of defect in her character is a very serious matter and the Courts below ought to have critically examined the evidence of the respondent to see if the petitioner was in fact so depraved that she could not be trusted to look after her own children. I notice with regret that they gave been remiss in this regard. In support of his case, the respondent apart from himself, examined four other witnesses, namely, Muhammad Akram (P.W. 3), Mushtaq Ahmad Butt (P.W. 4), Ghulam Sarwar (P.W. 5) and Muhammad Ismail (P.W. 6). One of the allegations made by the respondent was that the petitioner had resided for a few months in the Gulshan‑i‑Ravi Scheme and on account of her activities of dubious nature she was thrown out of the Mohalla by the residents of the locality. In support of this allegation he examined Ghulam Sarwar (P.W. 5), Mushtaq Ahmad Butt (P.W. 4) and Muhammad Akram (P.W. 3). Of these Mushtaq Ahmad Butt (P.W. 4) is a resident :)f Gujrat and he did not claim that he had personal knowledge of the said incident. Ghulam Sarwar (P.W.5) and Muhammad Akram (P.W. 3) are residents of Gulshan‑i‑Ravi Scheme. They both claimed to be neighbourers of the petitioner when she lived in their locality. It is surprising that Muhammad Akram (P.W. 3) too had no personal knowledge even though he claimed acquaintanceship with the petitioner. As regards Ghulam Sarwar (P.W. 5) he appears to be a trumped up witness. He even did not know the petitioner's name or the names of her children, although he testified with regard to her character and the sort of persons who were visiting her house. I am surprised that the Courts below accepted the evidence of these witnesses without any hesitation.

9. Apart from the above incident the respondent also led evidence to show that the petitioner did not enjoy good reputation. In this regard he examined Mushtaq Ahmad Butt (P.W.4) and Muhammad Jamil (PW. 6). Mushtaq Ahmad Butt (P.W. 4) claimed that he was Chairman of the Union Committee Gujrat and that the dispute between the petitioner and the respondent had at one time been referred to him. He alleged that according to his investigation the petitioner had a dubious character. Now as already mentioned this witness belongs to Gujrat whereas the petitioner has been residing at Lahore. He cannot therefore, have personal knowledge with regard to the character of the petitioner. His evidence is, therefore, at best his opinion and for that reason has no probative value. Muhammad Jamil (P.W. 6) stated that the petitioner resided in his Mohalla. He alleged and he also stated that the two minors roamed aimlessly and that the house in which the petitioner reside was a small one and occupied by many persons. He gave the particulars of accommodation in the house in which the petitioner lived. In cross‑examination he admitted that both the minors were receiving education. He was unable to give the names of the minors of the father of the petitioner. If this witness was really so well‑acquainted with the petitioner and her family that he was able to give the details of the accommodation occupied by them it is surprising that he did not know even the name of the father of the petitioner. It may be mentioned that the petitioner was working in a concern known as Shezan. Obviously he too is a put‑up witness.

10. So far as the respondent is concerned he went to the extent of saying that the petitioner had given birth to an illegitimate child. However, during the course of cross‑examination this assertion was struck off. Nevertheless, the learned Family Judge elected to rely upon this allegation too to hold that the petitioner was a woman of easy virtues.

11. In view of the above state of evidence I should think that there was no basis whatsoever for either doubting the character of the petitioner or to hold that she was not a fit person to have the custody of her own children.

12. While deciding the question of custody another ground which weighed with the learned Additional District Judge and the Family Judge was that the petitioner did not have sufficient means to look after her children. I do not think that this consideration was relevant as it was the responsibility of the respondent to provide maintenance for the children so that they could be brought up in accordance with the living standard of the parents. This ground could not therefore, be made the basis for holding that the petitioner ought not to be permitted to keep her own children with her. Reference in this context is invited to a decision of the Supreme Court reported as Feroz Begum v. Muhammad Hussain (1978 S C M R 299).

13. The Courts below have granted the custody of the' minors to the respondent without making any provision for their meeting or coming into contact with their mother. I do not see how it can be in the welfare of the minors that they should be deprived of the love and affection of their mother. Children are not chattels and proceedings for custody of minors cannot be treated as if these were suits for recovery of movable property so that exclusive possession may be granted to one of the parties. As already noticed, there is no defect in the character of the petitioner which would necessitate total severance of contacts between her and her own children. Separation of parents on account of divorce or for some other reason is always an unhappy event for their minor children for it is they who stand to suffer the most. While granting the custody of the children, the Courts should ordinarily make arrangements which would enable hem to have access to both parents provided these arrangements do not make them feel unsettled all the time.

14. As already stated the girl, Naghma Ehsan, is now 13 years of age while her younger brother Raees Ahmad is 7 years old. They appeared before me during the course of this civil revision. They both expressed desire to stay with the respondent. Although the son is too young but the girl is old enough to make a choice. Apparently, they are quite happy in the house of the respondent ins! Gujrat. They are also studying in school at Gujrat. In the circumstances I would not send them to a house where they would be less happy. Accordingly, I would not interfere with the orders of the Courts below whereby they granted their custody to the respondent. However, for the reasons already stated I would direct that during the summer and winter vacations and Eid holidays the custody of the minors should be transferred to the petitioner so that they can also partake of maternal affection. The respondent shall lend the minors to the mother at the beginning of the vacations and Eid holidays to the petitioner at his own expense. After the expiry of the vacations and Eid holidays the respondent shall take them back again at his own expense.

15. The civil revision is disposed of accordingly. In view of the peculiar relations between the parties there will be no order as to costs. A. A./N‑142/L Order accordingly.