2008 PLP 127 (YLR)

SARDAR MUHAMMAD ASLAM, J.

Facts giving rise to this constitutional petition are that the petitioner married respondent No.3 according to Islamic Law on 24-11-1995 and out of this wedlock one son Usama Babar and one daughter Inza were born. The children are in the custody of respondent No.3. The petitioner has moved an application under section 25 of the Guardians and Wards Act before the learned Guardian Judge on 21-9-2001 for custody of his children, which was contested by respondent No.3. Controversy gave rise to framing of issues. Both the parties produced their respective evidence. The learned Guardian Judge after hearing the parties dismissed the same vide order, dated 16-9-2006. Being aggrieved of the same the petitioner has preferred an appeal, which came up for hearing before the learned Additional District Judge, Faisalabad, which met the same fate vide judgment dated 16-7-2007. This petition assails concurrent judgments passed by learned courts below.

2. I have heard the learned counsel for the parties and perused the record.

3. The petitioner is Sub-Inspector in Motorway Police. He has old aged mother in the house alone. Usama minor is student of class-2. He had shining academic record. Respondent No.3 mother is serving in a private department. She has not gone for 2nd marriage and looking after her minor son and daughter. Both minors are .aged about 8 1/2 and 4 1/2 years respectively. They are present in Court. They are clad in clean, well-stitched clothes. Both are looking bright and happy with their mother. They are living with the company of their mother right from the day one and after pronouncement of divorce. Decree for maintenance allowance was passed against the petitioner, which has not been honoured by him so far. Respondent No.3 mother has sought execution. There is no substitute of love and affection bestowed by the mother to her children. Difference of income between the father and mother has no over-riding consideration. Father is always bound to maintain the minor even if mother is jobless and has no source of her own independent income.

4. Two courts below found against the petitioner. Exercise in constitutional jurisdiction is uncalled for in the circumstances of the case. This petition, therefore, is dismissed.

5. As far as right of visitation of petitioner is concerned, the petitioner shall be entitled to meet the minors on first Saturday of each succeeding month from 10 a.m. to 11 a.m. in the court of learned Guardian Judge, Faisalabad. The judgment of the learned appellate court is modified by substituting first Friday of each succeeding month to first Saturday of each succeeding month. H.B.T./S-182/L Petition dismissed.