2013 PLP 1784 (CLC)

MIAN FASIH-UL-MULK J.

By means of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, Mst. Nafeesa (petitioner) has called in question the judgments/orders and decrees of the two Courts below, whereby custody of her minor son Ibrahim Khan was given to his father Mir Bahadur.

2. The bone of contention between the parties i.e. petitioner/wife and respondent No.1/husband (separated through divorce) is over the custody of their male child namely Ibrahim Khan. Initially, the parties had filed applications for custody of their child, out of which, one application was decided by the learned Family Court in favour of petitioner/mother and the other was decided by the learned Senior Civil Judge, Peshawar in favour of respondent/father. The matter was then agitated in appeals by both the parties, which was decided on 14-6-2006 by the appellate Court which maintained the decision of the learned Judge, Family Court in favour of respondent/mother and the respondent/ father was only held entitled to visit the minor once in a month at the time and place suitable and agreed by the parties till the minor attains the age of seven years, whereafter the father/respondent could get custody of the minor. When the minor attained the age of seven years, the father/respondent accordingly filed another application before the Family Court for the purpose but again the same was dismissed vide order dated 14-6-2007. The respondent preferred an appeal before the appellate Court against the said order, which was accepted and the case was remanded back to the trial Court with direction to record pro and contra evidence of the parties. After remand, evidence of the parties was recorded and vide impugned judgment, custody of the minor was ordered to be, handed over to his father/respondent. The appeal of petitioner/ wife before the appellate Court also failed and she has now questioned the legality of the impugned judgments of the two Courts below through instant writ petition.

3. Counsel for the parties offered considerably detailed submissions. The failure of mother/petitioner to get custody of the minor before the Courts below was on the sole ground that she did not keep proper care of the education of her son. The undisputed facts in this case are that the minor is having a British nationality having been born to parents in the United Kingdom, where father of the minor is a Bus driver. Neither the petitioner/wife nor the respondent/husband has contracted a second marriage. Similarly, the financial position of petitioner/wife coupled with her morality is also not in issue. The only reason for extending favour to father/respondent towards grant of custody of the minor was that previously the learned appellate Court had held the respondent/father entitled to the custody of minor after attaining the age of seven years and that at some stage during such litigation the parties had also approached this Court through writ petitions wherein too directions were issued to the mother to keep care of the minor with regard to his proper education.

4. From the evidence on file, it is evident that the minor was initially admitted in Kiran Model School in the year 2005 where he received education till 31-3-2007. The Principal of said School while disclosing such facts in his statement before the Court also stated that as per attendance register for the month of April, the name of child is missing and that for the month of May there is entered "L" against his name followed by similar entry in the register for the month of September, October and November. He clarified that "L" means "leave". It is further evident from the record that the child was then admitted Fazle Haq College, Mardan where he studied upto Class-IV whereafter he was admitted in Saint Francis School, Peshawar, where he is still studying. Although, from the above facts, it is evident that the educational institutions of the child were changed twice but it never discloses the fact that he is not receiving his education properly because except his absence in Class Prep for some months, there is nothing on record that thereafter the child has committed any negligence in attending his classes in the Fazle Haq College, Mardan or Saint Francis High School, Peshawar. The most interesting aspect of the case is that the respondent/father along with his parents resides in the United Kingdom and the application for custody of the minor has been filed through an Attorney, who too is not shown to be related either to the minor or his father/mother. The Courts below have conveniently ignored the welfare of the minor which is always, kept supreme overall consideration like financial status and other allied matters. In these, circumstances, handing over the custody of child to an attorney of the child is neither a recognizable act either in the English Law or in the Islamic Law, both, particularly when both the Courts below have put a clog on the father that the minor will not be removed from the territorial limits of Pakistan till attaining the age of his majority. In these circumstances, the minor cannot be deprived from the love and affection of his real mother.

5. Learned counsel for respondent No.1 laid great stress on the point that this Court in its constitutional jurisdiction cannot disturb the concurrent findings of facts arrived at by the two Courts below after appraisal of the evidence on record as according to him in a number of decided cases this principle is stated and re-stated. In other words, this Court cannot set aside the concurrent findings/decisions of the Courts below. However, in our view, finality of the judgment of the lower Courts in such like cases would be subject to certain exceptions as the object of exercising constitutional jurisdiction is to foster justice, right a wrong and to cure a manifest illegality so that justice could be done to the parties.

6. Minor's capability of making intelligent reference, about which of the parents he chooses to live with is important in the case and it is a matter of record that the minor while present in the lower Court had misbehaved with his grandfather and even with the Presiding Officer of the Court over the grant of his custody to father. From this, a firm opinion can be formed that the minor has preferred to live with his mother and the mother/petitioner therefore could not be disentitled and disqualified to retain custody of the minor on the sole ground that he while, studying in Prep Class had absented himself from attending the School for some period, who otherwise is studying in good School. His custody, of course, cannot be given to a stranger till attaining the age of majority. The powers of Court with regard to custody of minor are in the nature of parental jurisdiction, and it must act in a way, a wise parent would do. The expression "welfare" would be construed in a way so as to include in its compass all the dominant factors essential for determining the actual welfare of the minor. Hence, findings of Courts below are not based on correct application of law, as well as appreciation of evidence on record. It is true that father has preferential right under personal law to get custody of male child after period of Hizanat is over. But, it is also accepted and being persistently followed on basis of numerous findings of superior courts that welfare of minor is always of paramount consideration while determining question of custody. Personal Law is not to be allowed blindly or in automatic fashion, but has to be decided objectively. The principle of law as discussed by the Hon'ble Supreme Court in the case of Mst. Mehmooda Begum v. Taj Din (1992 SCMR 809) followed by the High Courts of Quetta in 1998 MLD 1697 can be invoked, wherein it has been laid down that findings of facts recorded by 'Tribunal of special jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there has been serious misreading or misappreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law. We thus find that in this case too the learned Courts below have not only misappreciated the evidence on record but has also not taken into consideration the relevant law in its true perspective and the findings arrived at are not correct in the peculiar circumstances of the case.

7. Consequently, this writ petition is accepted, the impugned judgments/orders of the Courts below are set aside. and custody of the minor is ordered to remain with his mother/petitioner till the age of his majority. The father can meet the minor as and when he comes to Pakistan but with permission of the trial Court about the place, time and days of such meetings. AG/116/P Petition accepted.