1986 PLP 662 (CLC)

(2) Whether the plaintiff has failed to look after or maintain the minors? (3) With whom the welfare of minors lies? (4) What should the decree be?" The petitioner examined himself (Exh. 4) and Ali, his own father (Exh. 5). On the other hand, the respondent No. 3 examined himself (Exh. 9) and produced as defence witnesses Rajbai (Exh. 6S, Rehmatbai (Exh. 7) and Abdullah (Exh. 8). The last named witness is the President of the Jamaat to which the contesting parties belong.

3. The learned Family Court dismissed the suit vide judgment, dated 9th August, 1984. Family Appeal No. 96/77 filed against the above judgment was heard by the learned IIIrd Additional District Judge, Karachi but it also failed and thus, the judgment of the Family Court in the suit was upheld.

4. The petitioner in the above circumstances has invoked the Constitutional jurisdiction of this Court by filing this constitution petition.

5. Mr. Suleman Kassim, learned counsel in support of the petition submitted that as Bibi Rabia (daughter) is now aged about 15 years and that Muhammad Hussain (son) has attained the age of 12 years, the petitioner as the father being the natural guardian has preferential right to have the custody of the said minors. Learned counsel placed reliance upon the cases reported as Mst. Sultana Begum v. Muhammad Shafi P L D 1965 Kar. 416 and Chiragh Bibi v. Khadim Hussain P L D 1967 Lah.

382. After hearing the learned counsel for the petitioner on the submissions made as above and Mr. Jan Muhammad Dawood, Advocate for the respondents Nos. 3 and 4 in reply, the findings of fact which emerged are that according to both the Courts below the petitioner is a jobless person, vagabond and that he neither maintained the minors nor ever visited or cared to see them, and that he has no house of his own. At the time of arguments, it was further revealed that the petitioner has contracted a second marriage from which he has got 3 children whom he has to look after and maintain. The findings reached by the Courts in exercise of their exclusive jurisdiction are supported by the evidence on record. The Courts also took notice of the fact that the witnesses had deposed that the petitioner had not treated the minors as his own children but used to disown them by saying that they are illegitimate and that it was because of his cruelty and false accusation that his wife Mst. Aisha committed suicide. After taking into consideration, all the circumstances and facts, the Family Court came to the conclusion that the welfare of the minors lies in their continuing to remain in the custody of respondents Nos. 3 and 4 and that they are being looked after properly and getting proper education as well under the care and custody of respondents Nos.3 and

4. The appellate Court concurring with the findings of the Family Court held:‑

"From the evidence on record, the appellant has failed to show that the welfare of the minors is at stake in the hands of respondents. The appellant being father has completely ignored the welfare of the minors, he being jobless, would not be in a position to look after and maintain the children properly. No satisfactory evidence has been produced by the appellant regarding his earning and his status. The evidence produced by the respondents in the lower Court, I am of the considered view that the children are being looked after properly by the respondents and are getting education as well. The learned counsel for the appellant even has admitted that now the ages of the "minors are 12 years and 10 years respectively. The appellant will not afford to look after or maintain the children properly at this stage as in evidence, he has admitted that he is earning Rs.25 to 30 per day." The appellate Court further held:‑

"Further the only witness of the appellant, his father has admitted that the appellant, his son is selling the milk of his buffaloes and he is earning the commission from the sale of the milk. Hence, it is proved that the appellant is not earning sufficient amount to look after the welfare of the minor children, who are of growing ages at this stage. The appellant has also admitted before me at the time of argument that he has married a second wife and he has 2 issues from the second wife also. Hence, at this stage, it will be not proper to allow custody of children to the appellant as he has other two children and wife to maintain, from his meagre amount as stated above. From the evidence on record the appellant has failed to substantiate his allegation regarding non‑maintenance of the children by the respondents. The appellant has also failed to prove that the children are not being looked after properly by the respondent. I, therefore, come to the conclusion that welfare and upbringing of the children is in the hands of the respondents as already discussed by the learned lower Court."

6. Mr. Suleman Kassim, the learned counsel for the petitioner wanted this Court to interfere and quash the judgments given by the Family Courts on the plea that they are erroneous as the petitioner being father of the minors and thus, their natural guardian is entitled to the custody of the minors. This argument, however, cannot be accepted in view of the principles laid down by the Honourable Supreme Court and re‑affirmed in the case of Noor Muhammad v. Sarwar Khan P L D 1985 S C 313 wherein, it was held:‑-- "Before parting with the case, we may observe that there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a person designata) has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badrul Haque Khan v. The Election Tribunal, Dacca and others P L D 1963 S C 704, Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 S C 522." The impugned judgments given by the Courts of competent jurisdiction are based upon findings of facts based upon sound principle that the welfare of the minors, which is the paramount consideration, in their continuing to remain in the custody of their maternal‑ grandparents, respondents Nos. 3 and

4. The findings of facts as well as law in exercise of lawful jurisdiction would not be interfered by this Court in exercise of its constitutional jurisdiction as the Family Courts having jurisdiction to decide ‑the matter could do so rightly or wrongly. The impugned judgments neither suffer from any illegality or infirmity nor are rendered without lawful authority and of no legal effect merely) on a mere plea that the same are not correct.

7. Notice may also be taken here of the fact that the Family Court had allowed the petitioner to see the minors and meet them till they attain the age of ‑majority but the petitioner neither ever paid taxi fare as directed nor since the passing of the order even cared to see the minors much less pay anything towards their maintenance. It may also be mentioned here that on 2nd May, 1985 the two minors were called in my chamber and in the presence of learned Advocates of the contesting parties, they were asked if they would like to go to their father but both of them refused to do so. The minors appeared to be quite intelligent and able to understand the questions put to them. Bibi Rabia in my chamber gave her name as Noor Bano but her identity as the minor whose custody has been claimed was not disputed. Before concluding, I may observe that the two cases P L D 1965 Kar. 416 and P L D 1967 Lah. 382 are distinguishable and in no way advance the case of the petitioner.

8. For the reasons discussed above, the petition is dismissed as without any merits. The parties however, are left to bear their own costs. H . B . T . Petition dismissed.