2004 PLP 160 (CLC)

2. The petition was contested by respondent No.3 and after recording evidence it was accepted by Judge, Family Court/Guardian Judge, Chichawatni (respondent No.2) on the grounds that financially the petitioner was on better footing and after separation respondent No.3 had remarried a person who was not related to the minors within the prohibited degree and was, therefore, not likely to give love and affection to the minors which can be given by their father.

3. On appeal the aforesaid decision of the Family Court/Guardians Judge was set aside and petitioner's application for the custody of minors was dismissed by Additional District Judge, Chichawatni on the grounds that both the children were of tender age, were attached with their mother, were enjoying good health, the daughter aged 6 years was studying in school while the son who was younger was not of school going age, the minors were being properly brought up by the mother, there is no substitute of the love and affection of real mother and the paramount consideration was the welfare of the minors, hence the mother could not be deprived of the custody simply on the ground that she has remarried a stranger. It was also observed that it is the duty of the father to provide maintenance to his children irrespective of the fact in whose custody they are and that weak financial position of the mother was not a valid ground for depriving her of the custody of the minors.

4. The aforesaid judgment of Additional District Judge is assailed by the petitioner in this Constitutional petition on the grounds that it is against law and facts, is based on surmises and conjectures, is fanciful and arbitrary and that according to para. 354 of Muhammadan Laws by D.F. Mullah the mother loses the right of custody if she marries a person not related to the children within the prohibited degree but the aforesaid aspect was not properly considered by the learned Appellate Court.

5. Petitioner's counsel has been heard. Writ petition and its annexures perused.

6. A perusal of the impugned judgment shows that it is a reasonable and is not only based on evidence but is also supported by sound and plausible reasoning.

7. Keeping in view the tender age of the minors, it was harsh and unjust to deprive them from the mother's company. Guardian and Wards Act does not provide that custody of minors be decided on the basis of views expressed by different schools of jurisprudence with reference to minor's age or remarriage of divorcee. Overriding and paramount consideration always is the welfare of the minors which means their mental intellectual, moral and, spiritual well‑being.

8. Finding of fact recorded by the Appellate Court cannot be interfered with in writ jurisdiction especially when it could not be shown to be based on misreading or non‑reading of evidence.

9. The impugned judgment does not suffer from any jurisdictional infirmity. Writ petition dismissed in limine. H.B.T./M‑2231/L Petition dismissed.