2018 PLP 33 (YLRN)

MUDASSIR KHALID ABBASI, J.

Through this petition under Article 199 of the Constitution, petitioner has challenged the legality of judgment and decree dated 02.06.2015 passed by learned Judge Family Court, Sahiwal/respondent No.2 and judgment and decree dated 14.05.2016 passed by learned Additional District Judge, Sahiwal/respondent No.3.

2. Brief facts of the case are that petitioner filed an application for custody of Muhammad Usman aged 14 years, Muhammad Nauman aged 12 years, Muhammad Salman aged 9 years, Muhammad Hassaan aged 6 years and Afra Ayesha aged one year against respondent No.1 before respondent No.2 which was dismissed vide impugned order dated 02.06.2015. Feeling aggrieved, petitioner preferred an appeal before learned Additional District Judge, Sahiwal/ respondent No.3 which was also dismissed vide judgment and decree dated 14.05.2016. Hence, this petition.

3. Learned counsel for the petitioner contends that judgments and decrees of both the courts below are the result of misreading and non-reading of evidence on the record. Further contends that the children are not being properly brought up by respondent No.1 nor they are getting education properly even one son namely Usman aging 12 years is not studying rather he sits on a cloth shop of his maternal uncle. Argued that both the courts below did not enquire from the minors their consent for having meeting or for living with the petitioner. Further contends that petitioner is a teacher by profession, therefore, the welfare of the minors is with the petitioner. Further contends that the findings of both the courts below are against the law and facts of the case, therefore, same are liable to be set aside.

4. On the other hand, learned counsel for respondent No.1 opposed the contentions raised by the learned counsel for the petitioner and argued that there is no misreading and non-reading of evidence available on the record. Further contends that the welfare of the minors is in living with her mother/respondent No.

1. Further argued that the petition is not maintainable, therefore, same is liable to be dismissed.

5. Arguments heard. Record perused.

6. It is an admitted fact that petitioner has divorced respondent No.1 and question of custody has arisen out of the unsuccessful marriage of the parties. Obviously, strained relations had adversely effected the mental as well as emotional feelings of the minor children.

7. Presently, the prime consideration before this Court while deciding the question of custody is obviously the welfare of the minors.

8. Parties have produced evidence in support of their claims, however, I could not find any convincing material which entitles the petitioner for custody of the minors. On the other hand, it can be safely observed that the change of custody from mother to father shall adversely affect the emotional wellbeing of the children. This brings the Court to a conclusion that sympathies of the children always tilt in favour of mother as a natural and most common phenomena. This can also be felt in this particular case as well. There is no extra-ordinary reason to believe that the welfare of the minors lies in granting the custody to the petitioner/father.

9. So far as the question of imparting education to the children is concerned, it will definitely have a negative impact on the mental and psychological condition of the children, if they are removed from the custody of the respondent. In such eventuality children shall be deprived from an atmosphere where they can be educated in a much better way. Another very important aspect of the case is that advanced educational facilities are available in urban area where the respondent/mother is putting up along with children.

10. Courts below, keeping in view the peculiar facts and circumstances of this case have rightly come to a conclusion that welfare of the minors lies in the custody of mother/respondent. I find no jurisdictional defect or infirmity in the impugned judgments and do not find any reason to interfere in constitutional jurisdiction. What has been narrated above, this petition does not succeed and is dismissed with no order as to cost. MQ/M-112/L Petition dismissed.