1986 PLP 1857 (CLC)

S. 25--Custody of children--Children born out of Christian wedlock and Christian by faith--Mother of children subsequently embracing Islam and after getting divorce from Christian husband remarrying with a Muslim--Supreme consideration in guardianship proceedings consistent with personal law, to which minors are subject, would be welfare of minors--While considering issue of welfare, Guardian Court, held, would be obliged to consider every circumstance which could tend to weigh on welfare of minors--Religion in which a minor is brought up would be very important factors amongst other considerations--Right of father to control religious education of his minor children is given to him by law and father would have a right to have his children brought up in his own religion--Father being a Christian, Christian household would be proper house for children in circumstances. Ganesh Lala v. Ratan Bai and another A I R 1937 Mad. 976; Mst. Budhan v. Bahadur Khan and another A I R (29) 1942 Pesh. 41 and Mst. Ghulam Fatima alias Shammi Bai v. Chanoomal and another P L D 1967 Kar. 569 ref. (b) Constitution of Pakistan (1973)

Art. 199--Guardians and Wards Act (VIII of 1890), S. 25- Constitutional jurisdiction, exercise of--Findings of facts--Effect- Concurrent findings of fact by Courts below having jurisdiction in matter, based on examination of evidence and consistent with personal law of minors, would manifest that Courts neither overlooked any piece of evidence nor any rule of law applicable thereto--Court or Tribunal having jurisdiction to determine a fact, conclusions arrived by it even if erroneous, held, could not be characterized either illegal or without jurisdiction to attract interference in constitutional jurisdiction. Ajmal Kamal Mirza for Petitioner. Malik Mukhtar Hussain for Respondents. This application under Article 199 of the Constitution of Islamic Republic of Pakistan is. directed against the judgment dated 2-3-1986 of learned Additional District Judge, Jhelum, whereby appeal taken to his Court by Mst. Maryam was dismissed and order of Guardian Judge dated 4-5-1985 restoring the custody of minors to respondent-father was affirmed. Facts are: Mst. Maryam Zohra, formerly a Christian, was married to Yousaf Jamal respondent, also a Christian, under Christian rites. Their marriage was blessed with a daughter and a son namely Mst. Suzana Anjum and Asif Anjum. Their respective ages have been given in the order of Guardian Judge as 9 years and 7 years. It appears Mst. Maryam Zohra renounced her Christian faith, embraced Islam and married Raja Hamid Ali, a Muslim of Jhelum city in 1980. Second marriage was preceded by divorce. Out of the new union, Mst. Maryam Zohra has also given birth to two children. Admittedly, her second husband was a Muslim, who was not related to the minor children. Father who had also taken a second wife meanwhile, instituted proceedings under section 25 of the Guardians and Wards Act to regain custody of his minor children who were staying with their mother in the house of her second husband. Application for custody was seriously resisted by Mst. Maryam Zohra. Learned Guardian Judge, on examination of the evidence produced before him found, that, father was entitled to the restoration of the custody of the minor children and vide his order dated 4-5-1985 directed the mother to handover the custody of minors to their father. First appeal, as observed above, was dismissed by learned Additional District Judge. Both the Courts found that welfare of the minors who were Christian by faith, lay in their going back to their father. As there is no second appeal or revision available findings recorded by the Judges below have been assailed in constitutional jurisdiction. Petitioner's counsel has been heard as also the respondents counsel who appeared in limine hearing. Much of the facts are not in dispute. It is conceded that minor children were born out of Christian wedlock and indisputably were ,Christian by faith. Raja Hamid Ali is a Muslim and so was his new wife, who after renouncing her former faith, has entered the fold of Islam. Apart from the difference in faith, Raja Hamid Ali is not related to the minor girl within the prohibited degrees and was rather a total stranger to her. She has almost reached the age of 10/il years. Son is also beyond 7 years of age. Supreme consideration in guardianship proceedings consistent with the personal law, to which the minors are subject is their welfare. Father in this case continued to be a Christian, but mother of the minors has already embraced Islam and married a Mulsim husband. While considering the issue of Welfare Guardian Judge is obliged to consider every circumstance which tends to weigh on the welfare of the minors. Amongst others, religion in which the minor is to be brought up was a very important factor for consideration. The right of a father to control the religious education of his minor children is given to him by law Accordingly, the father has a right to have his children brought up in his own religion which in this case would be the religion of Christianity. In J. Ganesh Lala v. Ratan Bai and another A I R 1937 Mad. 976, a Hindu widow who had married a Christian was not considered to be a proper personal guardian of a Hindu minor son by her first husband. Learned Judges of the Madras High Court observed that the minor boy regarding whose guardianship there was a dispute, should ordinarily be brought up as a Hindu like his father and Christian household was not a proper house for him. Similarly, in Mst. Budhan v. Bahadur Khan s/o Hakim Pehlwan Muhammad Said Amin Khan and another A I R (29) 1942 Pesh. 41 there are clear observations which provide valuable assistance for the decision of the issue before this Court. See also Mst. Ghulam Fatima alias Shammi Bai v . Chanoomal and another P L D 1967 Kar.

569. Question as to the welfare of the minors is essentially a question of fact to be resolved on evidence. Both the Courts which undoubtedly were possessed of jurisdiction examined the evidence and other related circumstances of it was in their interest, that their custody be restored to their father. In coming to the aforesaid conclusions, Courts have neither overlooked any piece of evidence placed before them nor any rule of law applicable thereto. It, therefore, cannot be urged that their decisions were either without jurisdiction or without lawful authority. It is well-settled that a Court or a Tribunal which has jurisdiction to determine the fact and does determine it, its conclusions being merely erroneous, was hardly a good ground to characterise them either as illegal or without jurisdiction to attract interference in constitutional jurisdiction. I say so on the authority of the statement of law that a Court which has jurisdiction to decide has also the jurisdiction to decide it right or wrong. Clear reading of impugned judgments reveal that they do not suffer from any error apparent from the face of record. In my opinion, decisions of the Courts below in the facts and circumstances of this case, were not only just decisions but were proper decisions also. No interference; therefore, can be made and the petition is dismissed summarily. However, it shall be open to the mother of the children to approach the Guardian Judge to make arrangements for her so that she could see and meet with the minor children to avoid any serious estrangement. A. A. Petition dismissed.