1983 PLP 2846 (CLC)

The facts leading to the passing of the impugned orders are as under :-

1. The petitioner is the father of minors Anwar, Ajmal, and Amjad who have been shown to be aged 5, 4, and 3 years respectively in the petition. Respondent No. I is his wedded wife and the mother of the threw minors. The spouses have strained relations and it appears from [,he certified copies of documents filed by the applicant alongwith memo. of petition and the contents of the petition itself that whereas it is the case of the petitioner that the respondent left his house on 30th April, 1981 taking away her ornaments given to her in dowery, cash amounting to Rs. 50,000 and clothes and other valuable articles and leaving behind the three minor children ; it is the version of the respondent that she had been compelled by the petitioner to leave his house and took refuge in the house of her father alongwith her youngest son. It was further her case that minor Anwar Noman was at School at that time while Ajmal Noman was already since long living with her parents. It is, therefore, her case that all the three children were with her on 30th April, 1981. It is further her case that on 23rd May, -1981 at about 11.00 a. m. when she was alone with her mother and her three- minor sons, the petitioner entered with dagger in his hand and snatched away the minors. On residence he tried to attack her with the dagger but she was saved by the Chowkidar Khair, Muhammad who happened to come and rescued her. The petitioner according to the respondent forcibly. took away the crying children and purse containing Rs. 200 with the aid of two accomplices who were waiting outside the house in the Suzuki Van. She did not lodge any formal complaint with the police as her mother-in-law and brother of mother-in-law Rabbani, made her not to do so and promised that they would prevail upon the respondent to return the minors and the purse. However, the petitioner again started threatening her on 27th May, 1981 when he visited the house where she was residing at 9-00 a. m. stating that if any legal action was taken or report made to Police he would shoot down parson concerned. Finding her life unsafe and also apprehending danger for her entire family the respondent reported the matter to Police on that day i. e. 27th May, 1981. The F. I. R. was lodged at the North Nazimabad Police Station as a result of which the petitioner was arrested for offences under section 307/506, P. P. C. and was later enlarged on bail. pending trial.

2. It was the case of the respondent wife that her husband was a man of furious temper, unbalanced mind, who used filthiest language and was responsible for outrageous acts. She stated all the abovementioned facts in her application made before the Family Court under section 25 of the Guardian and Wards Act, 1890 read with Family Courts Act, 1964 which she had filed for custody of her three minor sons and in that applica tion she has stated that the minors were kept in desperate condition at the house of her husband in P: E. C. H. S. and they were confined just in two rooms and had not even seen the sky for the last several days. She had asserted iu that application that their welfare was extremely in danger and their health and very lives were in jeopardy. She had further asserted that they were not washed or fed properly as there was no one to look after them and the old and ailing mother of the petitioner with whom the petitioner frequently quarreled and whom he had turned out, was not a fit person to look after the minors. It was also asserted that the education of the children would also be interrupted and their moral and psycholo gical well-being was at stake. It was further her case that the petitioner was demanding money from her father as ransom for the minors and was not at all interested in the welfare of the minors, In para 12 of the application she had made a statement that the petitioner had no love and affection for the minors and he could not look after them properly as he remains out of the house most of the time and the minors were confined in the house like caged animals. She invoked her right of Hizanat under the Shariat Law. On the same date i.e. 8th June, 1981 she filed affidavit in support of her application under section 25 of the Act. She gave a list of witnesses showing that they would depose about marriage, cruelty of the petitioner, his bad temper and bad conditions in which the minors were being kept and the fact that the welfare and well being of the minors was in danger. She also named the witnesses who had seen removal of the minors from her custody and care as a mother.

3. Alongwith the application under section 25 of the' Act, respondent No. 1 also filed an application under section 12 of the Act for interim custody of the minors pending decision of her application under section 25 of the Act. It was on the aforesaid application under section 12 of. the Act that the learned Family Court passed the impugned interlocutory order giving interim custody to the mother and it was again in the appeal filed against the aforesaid interim order before the Appellate Family Court that the second impugned orders dismissing the appeal was passed.

4. I have heard Mr. Naseem. Farooqui, the learned counsel for the petitioner for the purpose of admission of the petition. He has raised the following contentions : (1) That the impugned orders are illegal and without lawful authority as the procedure envisaged under the law had not been adopted and the affidavits filed by the petitioner had not been considered. (2) That the order under section 12 of the Act had been obtained to enable the respondent No. 3 (the mother) to bring; up the children in an atmosphere hostile to the, petitioner so as to deprive him as natural guardian of the Hizanat of the minors. (3) That respondents 1 and 2 by passing and affirming the order have virtually disposed of the main application for custody of the minors. (4) That the order leaving the petitioner (father) access to the children has been violated.

5. Before I consider the aforesaid contentions it would appear to be apparent that to, give jurisdiction to this Court in the matter, it has to be shown that the impugned orders were without jurisdiction or in excess of jurisdiction or they were not legal and proper. It may also be observed that there is alternate remedy available to the petitioner in that even the main application under section 25 of the Act for custody of the minors has yet to be decided by the Family Court and further that the impugned orders cannot be regarded as final orders which need to be set aside in exercise of the constitutional jurisdiction of this Court. It is also apparent that it cannot be said that the petitioner has no alternate remedy available to him under the ordinary taw inasmuch as the application for custody of the minors the mother even is yet to be decided.

6. With regard contentions raised, it was argued by the learned counsel for the petitioner that before passing the orders, Family Court and Appellate Family Court, should have made proper inquiry to consider the propriety of handing over custody of the minors to the mother. It. Was further argued by him that the right of the petitioner to the Hizanat of his children arises from the fact that he is legal guardian. In fact the contentions Nos. 1, 2 and 3 could conveniently be dealt with together. The impugned orders are interlocutory and interim in their nature and, therefore, the Courts did not consider it to be necessary to deal with such orders specially where minors of tender age were concerned by examining witnesses. This aspect of the matter was discussed by the learned Appellate Family Court before whom the contention was obviously raised and it has been explained in the impugned order that it was "not considered necessary to hold a detailed inquiry in the matter and only the affidavits filed by the parties were considered sufficient for arriving at the decision with regard to interim custody of minors of such tender age. It may here be further observed that although there were allegations against the petitioner namely the father of the minors about his temperament and ability to look after children there was no such allegations in any affidavit, with regard to mother against whom the only point made out was that she had left the three minors while leaving the house of her husband. This was the allegation only but even if it later on appears to be correct, in my opinion it would not retract from her right to Hizanat of her tender aged children as the same is given to her under the personal law governing the parties.

7. There are several decisions of the superior Courts on the. point that even if all other things are equal where the two parents are concerned, the mother has preference to the- custody of the tender aged minors. Even otherwise the welfare of the minors being the paramount consideration, even after the minors have crossed the age during which- the custody is given to the mother, looking to their welfare the mother's custody was ordered to be continued. It was so held in decision of the Lahore High Court in Mst. Zohra .8egum v. Sh. Latif. Ahmed Munawwar (1974 S C M R 96), In that case in an application under section 25 of Act, it was found that the mother for nine years had reared and brought up her two minor children, a son and a daughter whereas the father had not agreed to contribute a single pie towards their maintenance and it was held, that it was in the welfare of the two children to remain in theSustody of their mother. 8: In Shah Nuwaa Khan and others v. MsP. Shahida Parveen and others (P L D 1965 (W. P.) Lah. 695) a decision of the Supreme Court, where the Guardian Judge had given interim custody of her suckling baby to the mother, regard being had to tender age of infant Supreme Court declined to interfere with the order :.3f the High Court maintaining that of Guardian Judge, also for the reason that -the (matter had yet to be decided under section

25. In Mst. Feroze Begum v. Lt. Col. Muhammad Hussain (1978 S C M R 299) a decision of the Supreme Court, it was held that so far custody of minor was concerned the overriding and paramount consideration in giving custody of the minor was the welfare of the minor and it was further observed that mere inability to maintain tb- minor was no ground for depriving mother of her custody over he. minor children as the father was responsible for maintenance of minors even though in custody of mother. Similarly in Sakhawat Ali and another v. Met. Shui Kheley (P L D 1981 S C 454 .) a decision of the Supreme Court, poverty of mother was held to be no ground for denying her custody of her children.

9. While deciding the question .of interim custody, in a case before the Lahore High Court, Zahid Mahmood and, another v. Mst. Rehana (1980 C L C 102), it was observed that custody of minors during pendency of proceeding can be given to any person whom the Court thinks fit. In the instant case as is clear from the judgment of the learned Appellate Family Court, the minors were ordered to be brought before the High Court and Court had considered their condition before granting interim cu3tody to the mother.

10. There is nothing in the law with regard to nature of inquiry necessary before granting interim custody of the minor. It is sufficient in the inquiry is made by taking into consideration the affidavits filed before the Court since the recording of evidence at that stage would not be free from danger to the welfare of the minors as there would be time take before passing the interim orders, which in the very nature of things in such case should be passed as soon as possible. The instant memo. o petition was presented in the Court on 9th November, 1981 and it had not been possible to hear the matter for admission due to pre-occupation of the learned counsel among other things till 19th September, 1982. It is also very clear that the urgency of quick orders was emphasised by the respondent No. 1 the mother of the children and her apprehension about health and the very life of the minors had been stated in the affidavit as well as in the application made by her. Before I end this order I would point out for the benefit of the Family Court concerned that the authorities cited in this order are only to show that the impugned orders were legally and properly made and at this stage when the learned Family Court has yet to record evidence of the witnesses cited, the observation made should not be considered as in any way affecting the power of the. Family Court to make a just and proper decision about the custody of the children.

11. With regard to contention that. the directive of the Family Court with regard to giving the father access to the minors during the time and day fixed, was not complied with, if there is no compliance of the directive the best course is to approach the Court concerned. Mr. Naseem Farooqui, the learned counsel however, states that such applica tion has been made before the Court.

12. For the reasons already given, I find no weight in this petition which is accordingly dismissed in limine. M. A. K. Petition dismissed.