2020 PLP 1340 (CLC)

ROZI KHAN BARRECH, J.

Petitioner Gulzar Khan filed an application under Section 25 of Guardians and Wards Act, 1890 for custody of minors namely Jameel Ahmed (aged 8 years), Essa Khan (aged 6 years) and Ambarin (aged 5 years) before the learned Family Judge, Sibi (trial court). The application was contested by respondent No.1 by means of filing written statement on legal as well as factual grounds. Out of pleadings of the parties the following issues were framed: "

1. Whether the court has no jurisdiction to entertain the suit?

2. Whether the application in the present form is not maintainable in law?

3. Whether the welfare of the minors is custody of applicant or the respondent?

4. Whether the applicant or the respondent is entitled for the custody of the minors or of who?

5. Relief?" After framing the issues, the trial court directed the parties to produced their respective evidence. Petitioner produced two witnesses and got recorded his statement on oath. In rebuttal respondent No.1 produced two witnesses and finally got recorded her statement on oath. After hearing arguments from both the sides the trial court allowed the application filed by the petitioner to the extent of minor sons namely Jameel Ahmed (aged 8 years and Essa Khan aged 6 years) by giving their custody to petitioner, while it was held by the trial court that female child namely Ambarin aged 5 years being a female child shall remain in custody of her mother (respondent No.1) till her puberty. The petitioner aggrieved from the said judgment to such extent filed an appeal under Section 14 of Family Courts Act, 1964 before the learned District Judge, Sibi Division Sibi (appellate court), which was dismissed vide judgment dated 12th June 2018. Hence this petition.

2. Facts in brief giving rise to the dispute between husband Gulzar Khan and his wife Mst. Rahima are that they came in bondage as husband and wife about twelve years ago. From wedlock they had two sons namely Jameel Ahmed aged 8 years and Essa Khan aged 6 years and one daughter Ambarin aged 5 years. It was a marriage on (Watta-Satta) but on attaining puberty Gulzar Khan's sister refused to marry brother of Mst. Rahima, thus matrimonial disputed erupted between petitioner and his wife. In result whereof respondent Mst. Rahima, along with her children were detained by her parents. No settlement came to solve the problem, resultantly dispute between petitioner and respondent No.1 arose for custody of children

3. We have considered the arguments advanced by learned counsel for the petitioner and have also perused the available record with his valuable assistance.

4. In the matter of custody of minors, the paramount consideration is welfare of the minors and the courts have to adjudge that out of father and mother who is the best suited for the custody of minors. Under Muslim, Personal Law, mother is entitled to the custody of daughter even after she has attained the age of puberty and until she is married, whereas the father can claim custody of his male child after seven years. The welfare of the minors is to be determined while keeping in view their mental, intellectual, moral and spiritual well being. The Guardian Court has also to look into qualification of parents, the age, gender, religion of minor, the character and capacity of the purposed guardian and his/her nearness of kin to the minor as provided under Section 17 of the Guardians and Wards Act, 1890 (the "Act"). The welfare of minor in all cases prevails as the supreme consideration for deciding the issue of her or his custody.

5. The record transpires that the petitioner himself is a contractor and remains out of home most of the time for business purposes. The petitioner has also failed to point out that who will look-after the baby girl at his home. Even otherwise, the minor is about 4/5 years of age in such age the attention of mother for capacity building and intellectual building of female minor is much required and in this age if the minor is departed from her mother a flaw would come in her upbringing. It is also reflected from record that the minor is a female child and respondent No.1 (mother) has been looking after her minor daughter ever since her birth and maintaining good environment. It also goes without saying that there is no substitute of mother's lap, therefore an association for female children with their mother is much important, as compared to the father. Further the poverty and poor financial status of mother, does not disentitle her from the custody of the minor. The Superior Courts in number of judgments have held that there is no substitute of mother and no one could take care of minors more than their real mother for being their first institution and depriving minors of the company of their real mother would create deprivation in their lives, which could not be restored back.

6. The nutshell of the above discussion is that there is no misreading or non-reading of the evidence which can be attributed to the judgments passed by both the courts below. Neither there is any jurisdictional defect which requires invocation of Constitutional Jurisdiction of this Court in exercise of jurisdiction conferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Appraisal of evidence is the function of courts below and if the findings are based on proper appraisal of evidence then the same cannot be interfered with lightly in exercise of writ jurisdiction. The party approaching the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has to demonstrate that there is gross misreading or non-reading of the evidence or any jurisdictional defect floating on the surface but in the instant case all these preconditions are clearly missing, therefore, the petition in hand is devoid of any force which is dismissed with no order as to costs. SA/155/Bal. Petition dismissed.