2003 PLP 1002 (MLD)
Captain MUHAMMAD TAHIR CHAUDHRY TI(M) PN — Petitioner Versus Mst. ZARTAJ KHANUM and others — Respondents
| Citation | 2003 PLP 1002 (MLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Captain MUHAMMAD TAHIR CHAUDHRY TI(M) PN — Petitioner Versus Mst. ZARTAJ KHANUM and others — Respondents |
Q1: What are the key laws and sections cited in 2003 PLP 1002 (MLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2003 PLP 1002 (MLD)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2003 PLP 1002 (MLD) (Captain MUHAMMAD TAHIR CHAUDHRY TI(M) PN — Petitioner Versus Mst. ZARTAJ KHANUM and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Babar Bilal for Petitioner.
- Nemo for Respondents.
- 10. Mr. Muhammad Bilal, Advocate has been heard on behalf of the petitioner.
Headnotes / Summary
Ss. 12 & 25
Constitution' of Pakistan (1973), Art. 199-- Constitutional petition
Plaintiff husband had divorced defendant wife and spouses had two minor girls and one minor son
Plaintiff filed suit for custody of minors and alongwith suit he had also filed an application under S. 12 of Guardians and Wards Act, 1890. for interim custody. of minor children
Family Court vide its interim order decided that minor daughters would remain in the custody of plaintiff while minor son would remain in custody of defendant
Family Court found that plaintiff who was drawing substantial salary being a captain in Pakistan Navy was maintaining children in his custody and that both daughters in his custody were receiving education in reputed educational institution
Family Court also found that as minor son was more than seven years of age, presumption according to personal law of plaintiff, was that the welfare of the minor son lay in custody with father
Family Court, in 'circumstances, found that welfare of minors lay with the father
Appellate Court' without adverting to the main question regarding welfare of minors, set aside judgment of Family Court
Family Court had considered respective evidence produced by the parties and had come to a positive conclusion that plaintiff was entitled to the custody of the minor son and to come to that conclusion, status of the plaintiff, his emoluments, the fact that minor daughters in his custody were receiving good education and were being looked after properly, were considered by Family Court-- Appellate Court on the other hand found itself focused upon findings of Family Court on issue regarding illiteracy and immoral character of defendant without taking into consideration welfare of minors
Appellate Court below while reversing findings of Trial Court based its findings on factors which did not put in juxtaposition the respective qualifications of the parties, so far as it directly related to the welfare of the minors-- Judgment of Trial Court which was a well considered judgment was erroneously set aside by Appellate Court below on extraneous considerations
High Court set aside judgment of Appellate Court in circumstances.
Judgment & Decree
5. The suit was contested by respondent No. 1 through filing of a written statement. The claim of the petitioner was denied. It was denied that it was in the welfare of the minor son to remain in the custody of respondent No. 1.
6. From the pleadings of the parties, the trial Court framed the following issues: Issues: (1) Whether the petition is not maintainable in its present form? OPP. (2) Whether the petition has been filed with mala fide intention? OPR. (3) Whether the respondent is an illiterate woman of immoral character? (4) Whether the welfare of the minor is with the petitioner? OPA (5) Relief.
7. The petitioner himself appeared as A.W.1 while the respondent appeared as her own witness as R. W.1.
8. The learned trial Court found the material Issue No.4 in favour of the petitioner. While coming to this conclusion, he relied upon the fact that the petitioner is an educated man and is serving as Captain in the Pakistan Navy. It was also observed that the petitioner was drawing substantial salary and was maintaining the children in his custody properly. Both daughters were receiving education in Bahria College, Islamabad which is a reputed educational institution. The learned trial Court also found that as the minor son was more than seven years of age, the presumption according to the personal law of the petitioner was that the welfare of the minor son lies in his custody with the petitioner. It is noticed that the learned trial Court was every influenced by the allegations of immorality and the allegation that respondent No. 1 was not educated. Quite independently of these considerations, the trial Court nevertheless found the welfare of the minor with the petitioner vide judgment dated 14-4-2000 the respondent No. 1 was directed to hand over the custody of the minor to the petitioner.
9. Respondent No. 1 filed an appeal against this judgment. The appeal was accepted vide judgment dated 17-5-2000 and the judgment of the trial Court was set aside. The learned Appellate Court engaged its attention solely to the question of the allegations made against respondent No.1 regarding her moral character and regarding her lack of education. The learned Appellate Court rejected both these allegations but without adverting to the main question regarding the welfare of the minor. The learned Appellate Court omitted to give any positive findings regarding welfare of the minor-son.
10. Mr. Muhammad Bilal, Advocate has been heard on behalf of the petitioner.
11. Respondent No. 1 did not appear despite the substituted service. Consequently, she was proceeded against ex parte vide order Bated 26-9-2002.
12. The learned trial Court had considered the respective evidence produced by the parties and had come to a positive conclusion that the petitioner is entitled to the custody of the minor son. To come to this conclusion the status of the petitioner, his emoluments, .the fact that the minor daughters in his custody were receiving good education and were being looked after properly and -the age of the minor son were considered Although the trial Court could have well avoided the observations regarding the character of respondent No. 1 yet the judgment of the trial Court is supported by the material on the record so far as the factor regarding the welfare of the minors is concerned.
13. The learned Appellate Court on the other hand found itself focused upon the findings of the trial Court on Issue No.3 alone. The learned Appellate Court did not consider the evidence of audio cassette to be reliable as according to it, the request for producing this cassette in additional evidence had already been rejected by the trial Court. The Appellate Court also found itself influenced by its own conclusion that respondent No. 1 could recite the Holy Qur'an. As observed hereinbefore the Appellate Court while reversing the findings of the trial Court based its findings on factors which did not put in juxtaposition the respective qualifications of the parties, so far as it directly related to the welfare of the minor.
14. The judgment of the trial Court was a well-considered judgment which was erroneously set aside by the learned. Appellate Court on extraneous consideration.
15. Resultantly, this writ petition succeeds and the judgment dated 17-5-2000 of the Appellate Court is set aside. H.B.T./M-1799/L Petition accepted