2008 PLP 480 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the order dated 15-6-2004 passed by learned Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the writ petition preferred on behalf of petitioner has been dismissed and the judgment passed by learned Additional District Judge, Haroonabad, has been kept intact.

2. As enumerated in the judgment impugned "facts in short are that Khan Muhammad petitioner was married to Mst. Surayya Bibi respondent. In consequence of the aforesaid marriage Muhammad Noman, Muhammad Kamran sons and Mst. Adeeba Bibi daughter were born. As the matrimonial tie could not be continued so it had ended into dissolution of marriage. The petitioner filed an application for custody of minors Mst. Adeeba Bibi, aged 9/10 years and Muhammad Kamran five years of age against Mst. Surayya Bibi, who was holding the custody of these children. Learned Guardian Judge, Haroonabad accepted the guardianship application while the petition filed by Mst. Surayya Bibi against Khan Muhammad for the delivery of custody of Muhammad Noman, which was residing with Khan Muhammad, was dismissed on 17-9-2003. Aggrieved from the aforesaid decision of the learned Guardian Judge, Mst. Surayya Bibi filed an appeal before the learned Additional District Judge, Haroonabad, which was accepted by the learned Additional District Judge, Haroonabad, to the extent that the custody of Mst. Adeeba Bibi and Muhammad Kamran, minors would remain with Mst. Surayya Bibi but her prayer for the delivery of the custody of Muhammad Noman from petitioner was rejected on 9-3-2004". Being aggrieved a writ petition was preferred which has been rejected by means of judgment impugned, hence this petition.

3. Mr. Muhammad Ozair Chughtai, learned Advocate Supreme Court entered appearance on behalf of petitioner who mainly contended that admittedly the age of Kamran is more than seven years ant; according to Muhammaden Law his custody cannot be handed over to Mst. Surayya Bibi (respondent) as it would be against the Injunctions of Islam and more so, it would be impossible for a female to take care of the minors who are growing day by day. It is contended that the petitioner being father would be in a better condition to take proper care of the minors as compared to that of their mother which aspect of the matter has been ignored by the learned Courts below which resulted in serious miscarriage of justice. It is also pointed out that her daughter namely Mst. Adeeba Bibi is admittedly more than twelve years of age and has reached the age of puberty whose marriage is to be arranged which could not be done by her mother being dependent on her-brothers who are not financially sound and it would adversely affect the future of her daughter namely Mst. Adeeba Bibi. It is also mentioned that the petitioner has not contracted second marriage only for the welfare of his children and Muhammad Noman whose custody was handed over to him is living happily with his father.

4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have minutely thrashed out the entire evidence and perused the judgment of learned appellate forum dated 9-3-2004 as well as judgment impugned. It is well-settled by now that prime consideration in such-like cases is the welfare of the minor, which being question of tact has been determined by the learned Appellate Court determination whereof has been upheld by the learned High Court vide judgment impugned which being well-based does not warrant interference. Even otherwise, the concurrent findings of fact as recorded by the Appellate Court and upheld by the learned High Court cannot be reversed without any lawful justification which is badly lacking in this case. It is worth mentioning that right of the father being natural guardian of minor, is subject to welfare of the minor because the c overriding fundamental and paramount important consideration is always the welfare of the minors.

5. The upshot of the above mentioned discussion is that the petition being devoid of merit is dismissed and leave refused. S.A.K./K-5/SC Leave refused.