2016 PLP 1460 (CLC)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of impugned orders dated 26.02.2011 and 07.06.2011 passed by the learned courts below. Through the former learned Guardian Judge allowed application of respondent No.1 filed U/S 25 of the Guardians and Wards Act, 1890 for custody of minor son Bilal Khan and through the latter the learned Appellate Court dismissed her appeal filed against the order of the learned Guardian Judge.

2. Facts of the case in brief are that respondent No.1 filed application for custody of his minor son Bilal Khan inter-alia on the grounds that the petitioner was not looking after the minor properly, therefore, for the welfare of the minor his custody be handed over to the respondent.

3. The petitioner contested the said petition while filing written reply. It was alleged that respondent No.1 had filed application for custody of minor in order to avoid payment of maintenance allowance to the minor; that she was looking after the minor properly; that the welfare of minor lay in custody of his real mother.

4. Out of the divergent pleadings of the parties, learned Guardian Judge framed necessary issues. Parties adduced evidence qua their respective contentions. After hearing the arguments, learned Guardian Judge vide order dated 26.02.2011 accepted the application of respondent No.1. Being aggrieved the petitioner filed appeal before the learned Appellate Court, who dismissed the same vide impugned judgment dated 07.06.2011. Hence, this Constitutional petition.

5. Learned counsel for the petitioner submits that the order/ judgment of the learned courts below are based on surmises and conjectures and result of misreading of the evidence; that the minor is living with the petitioner since his birth and has developed lot of love and affection with her; that the minor is being looked after properly and getting education; that respondent has no interest in the minor and he has filed application for his custody just to avoid payment of maintenance allowance; that the learned courts below have not applied their judicial minds while passing impugned order/judgment; that the learned courts below while passing impugned order/judgment has not taken into consideration the welfare of the minor which is of paramount importance while deciding the matter of custody of the minor; that second marriage of the petitioner is no more in existence and that this also cannot be made basis for disturbing the custody of the minor; that if the impugned order/ judgment are allowed to remain intact it would adversely affect the upbringing of the minor son.

6. Conversely, learned counsel for the respondent submits that the petitioner has contracted second marriage as such she has lost the right of Hizanat of the minor son; that the minor has now crossed the age of seven years as such according to Muhammadan Law father is entitled to have his custody; that the minor is now at the age of growing up and also requires financial considerations; that respondent has sufficient source of income and can look after the minor properly as compared to the petitioner; that the learned courts below after due appreciation of the material available on record have passed well reasoned order/ judgment which need no interference by this Court in its Constitutional jurisdiction.

7. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

8. The learned Courts below while disturbing the custody of the minor mainly relied upon the fact that the petitioner has contracted second marriage and the minor has crossed the age of seven years as such she has lost her right of hizanat. It is settled principle of law that while deciding the application for custody of minor the paramount consideration is the welfare of the minor and nothing else. Reliance is placed on case reported as Mehmood Akhtar v. District Judge, Attock and 2 others (2004 SCMR 1839) wherein it has been laid down 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 Muhammadan 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." It was further laid down in the above judgment that "mere fact that the father becomes entitled to get custody of minor or mother has lost the right of Hizant, is not a sole criteria to decide the question of the custody of minor." In the light of the aforesaid dictum of the Hon'ble Apex Court the learned courts below were not justified in disturbing the custody of the minor on the aforesaid grounds:-

9. Now the question which requires determination is that in whose custody the welfare of the minor lies. Respondent No.1 himself while appearing in the witness box as AW3 during cross-examination admitted that a suit for recovery of maintenance allowance of the minor has been decreed against him. However, he denied the fact that due to non-payment of maintenance allowance warrants of arrest have been issued against him. He further admitted that the minor is getting education in Pak Angels Grammar School.

10. On the other hand, the petitioner while appearing in the witness box though denied the factum of her second marriage but it is proved otherwise on record. However, second marriage is not a hurdle and on that basis a real mother cannot be deprived from the custody of her minor son particularly when it is also apparent from the record that the respondent himself is not disclosing true facts. He while appearing in the witness box as AW3 denied that warrants of arrest have been issued against him for non-payment of decretal amount but the petitioner has placed on record attested copies of the order sheet of the learned Executing Court which shows that time and again warrants of his arrest were issued by the Court. In these circumstances, when both the parties are not speaking the truth one party cannot be penalized on that basis and moreso the matter is required to be decided keeping in view the welfare of the minor.

11. It is evident from the record that the respondent filed application for custody of the minor subsequent to passing of decree of maintenance allowance against him, therefore, it can safely be presumed that the petitioner has least interest in the welfare of the minor and he filed application for his custody in order to frustrate the decree of maintenance allowance passed against him. It is also established on record that the minor in custody of the petitioner is growing up properly and getting education in a private school. Moreover, the minor son is living with mother since his birth and thus has developed great love and affection for her and if at this stage, his custody is disturbed, it would psychologically tell upon his personality in future. The petitioner is the real mother of the minor and there is no substitute of the real mother on the earth. Lap of mother is considered as cradle of God. There is also another aspect that the respondent remains outside the house for the whole day in pursuit of earning his livelihood and in this situation the minor cannot be left in solitude or on the mercy of paternal relatives in preference to his real mother.

12. It is reiterated once again that mere fact of remarriage of the mother would not ipso facto disentitle her from retaining custody of the minor and handing him over to the father when it is not otherwise in the welfare of minor. In the present case, it is also apparent from the record that the petitioner has obtained divorce from her second husband, therefore, seeking custody of the minor on that ground is no more available to respondent No.1.

13. Now dealing with the contention of the learned counsel that the respondent has sufficient source of income and he can fulfill all needs of the minor, it is pointed out that the respondent himself while appearing as AW3 during his cross-examination deposed that his monthly salary is Rs.6,000/-, therefore, in no manner he can be said a person of sufficient means. Besides, it is an established principle of law that poverty on the part of a mother is no ground to disentitle her from the custody of the minor. Reliance is placed on case reported as Mst. Razia Bibi v. Riaz Ahmad and another (2004 SCMR 821).

14. For the above discussion, seeing from whatever angle welfare of the minor lies in his custody with the petitioner particularly in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Firdaus Iqbal v. Shafaat Ali and others (2000 SCMR 838) that the rules of personal law would be subservient to the welfare of the minor.

15. Both the learned courts below while passing impugned order/ judgments have not taken into consideration the welfare of the minor which is paramount consideration for deciding such matters as such the conclusions arrived at by them are not sustainable in the eye of law. Resultantly, this petition is allowed as a result whereof impugned order/judgment of the learned courts below dated 20.02.2011 and 07.06.2011 are set-aside and as a consequence the application of the respondent for custody of minor U/S 25 of the Guardians and Wards Act is dismissed. However, the petitioner being the real father will have regular visitation rights of the minor, of course subject to clearance of all outstanding maintenance allowance of the minor and payment of future maintenance allowance on monthly basis. In that case the minor shall be permitted to meet the respondent for six hours during the second and fourth Saturday from 9 A.M. to 3 P.M. in the Court premises of the learned Guardian Judge, Lahore until he attains the age of majority or circumstances of the matter change drastically to show that the welfare of the minor is being compromised. However, if the respondent does not pay the maintenance allowance as directed above, he will forfeit his right of visitation as well. ARK/R-23/L Petition allowed.