2004 PLP 1839 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

Mehmood Akhtar, petitioner in the present petition, seeks leave to appeal against the judgment, dated 11-7-2003 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi in a Constitution petition arising out of the dispute between the parties in respect of the custody of their daughter Mst. Shaista.

2. The essential facts in the background are that Mehmood Akhtar petitioner and Mst. Yasmeen respondent No.3 herein, were married in 1991 and out of the wedlock minor daughter, Mst. Shazia, was born but unfortunately they could not continue the marriage tie and Mst. Yasmeen filed a suit for dissolution of marriage against the petitioner in the family Court at Attock. The learned Judge Family Court, in the light of settlement between the parties, dissolved the marriage on the basis of Khula and decreed the suit vide judgment, dated 18-12-1995. The matter relating to the custody of minor was settled in the following manner:

Upon failure of the petitioner to pay maintenance allowance of the minor as per above agreement, the minor through her mother, brought a suit against the petitioner for recovery of maintenance allowance. The suit was decreed and pending execution of the decree, the petitioner filed an application under section 25 of the Guardian and Wards Act, 1890 for custody of the minor. The learned Guardian Judge, Attock, dismissed this application, vide judgment, dated 12-4-2003 with the observation that welfare of minor would lie in her custody with the mother. In appeal preferred by the petitioner against the judgment of Guardian Judge, a learned Additional District Judge reversed the judgment with the observation that since respondent has contracted second marriage with a person who was stranger to the minor, therefore, the welfare and interest of minor would favour the custody of the minor with father, her natural guardian. Mst. Yasmin, respondent No.3 in the present petition while invoking the Constitutional jurisdiction of the Lahore High Court challenged the judgment of Appellate Court through a writ petition and a learned Single Judge of the High Court in the light of law laid down by this Court in Firdous Iqbal v. Shifaat Ali 2000 SCMR 838, having declared the judgment of the Appellate Court without lawful authority, allowed the writ petition.

3. Learned counsel for the petitioner has contended that the judgment of Appellate Court is based on sound reasons and the principle of law on the subject and that the finding of fact arrived at by the Appellate Court on the question of custody of minor, could not be interfered by the High Court in the writ petition without pointing out any defect of misreading or non-reading of evidence. However, the main contention of the learned counsel is that notwithstanding the non-payment of maintenance allowance of the minor in terms of settlement between the parties, the respondent on contracting second marriage earned a disqualification to retain the custody of minor and with reference to the provisions on the subject in Muhammadan Law by Mulla, argued that it is settled principle that mother on contracting second marriage with a person who is not related to the minor within prohibitory degree would loose the right of custody of minor. The learned counsel emphasized that in the light of above principle, the preferential right of father, who is natural guardian of the minor, cannot be defeated on the pretext of welfare of minor.

4. The right of custody of minor is not an absolute right rather it is always subject to the welfare of minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can-be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt the general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of the question of custody. The right of custody of minor being not an absolute right, the father or the mother as the case may be, may abandon this right and in the present case, the parties at the time of separation voluntarily settled the question of custody of Mst. Shaista, their minor daughter in the following manner:

"The minor shall remain in the custody of respondent and the petitioner shall be liable to pay maintenance allowance of minor at the rate of Rs.600 per month. In case the respondent contracts second marriage, she will hand over the custody of minor to the petitioner but if the petitioner fails to pay maintenance allowance, the respondent notwithstanding any other condition will be entitled to retain the custody of minor permanently. " In the light of above settlement, the petitioner agreed that in consequence to the non fulfillment of the condition of payment of maintenance allowance, he would not claim the custody of minor. This is noticeable that the petitioner instead of accepting his liability contested the suit filed against him by the minor for recovery of maintenance allowance and pending execution of the decree in the suit, he filed a petition under section 25 of the Guardian and Wards Act, 1890 for her custody. This is an admitted fact that the petitioner, after dissolution of marriage with respondent No.3, contracted second marriage and neglected his minor daughter so much so he did not even bother to discharge his legal and moral duty of payment of her maintenance allowance and this conduct of petitioner would reflect on his right of the custody of minor. The contention of learned counsel that under Muslim Personal Law neither the father due to the non payment of maintenance allowance to the minor, looses his right of custody of minor nor the mother can be allowed to keep the minor with her in the house of her second husband who is stranger to the minor, is repelled on the ground that in the present case both the father and mother have contracted second marriage and the minor has no choice except to live with step-father or step-mother and in the given facts, it would not be in the interest of minor to deprive her from natural love and affection of mother and compel her to face the step motherly treatment in the house of father. The Courts, subject to the welfare of minor, always determine the question of custody of minor child in the light of the governing principle of Muhammadan Law but mere fact that the father becomes entitled to get custody of minor or mother has lost the right of Hizant, is not a sole criteria to decide the question of the custody of minor. This Court in Firdous Iqbal v. Shifaat Ali 2000 SCMR 838 having discussed all the above questions raised before us in the light of Muslim Personal Law and the provision contained in Muhammadan Law by Mulla, has held that notwithstanding the right of father for custody of minor under Muslim Personal Law, this right is always subject to the welfare of the minor which is the paramount consideration for determining the question of custody of minor.

4. We having considered the matter in the light of law laid down by this Court and the principles of Muhammadan Law, find that in the given facts and peculiar circumstances of the present case, it would not be in the interest and welfare of minor to handover her custody to father rather the welfare of minor would lie in her custody with her mother and the learned Judge in the High Court while interfering in the matter in writ jurisdiction, has rightly declared the judgment of the Appellate Court, without lawful authority.

5. For the foregoing reasons, we find no substance in this petition and the same is accordingly dismissed. Leave is refused. M.H./M-138/S Petition dismissed