Muzammal Hussain Vs Additional District Judge Gojra etc.

2018 C L C Note 45

[Lahore]

Before Jawad Hassan, J

MUZAMMIL HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No. 96934 of 2017, decided on 9th November, 2017.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Entitlement of Mother having weak financial resources--- Scope---Welfare of minor---Scope---Non-payment of maintenance allowance by father--- Effect---Father contended that mother being a working lady with meager resources was not entitled for custody of minor---Validity---Better facilities claimed by the father did not disentitle the mother from custody of minor---Poverty of the mother was no ground to disentitle her from custody of minor---Record revealed that since the birth of minor the mother had been looking after and maintaining him in a good environment---Evidence of the mother as well as statement of the father showed that father had failed to provide maintenance to minor so far---Non-maintenance of minor by father would not automatically disentitle him from the custody of minor but the same would be one of the reasons for determining welfare of minor---Evidence showed that mother was no more working--- Poverty and poor financial status of mother, did not disentitle her from the custody of the minor---No substitute of mother and no one could take care of minor more than the real mother---Separating the minor from the company of mother would create deprivation in his life, which could not be restored back---No illegality or infirmity having been noticed, constitutional petition was dismissed accordingly. [Paras. 6 & 7 of the judgment] Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839; Mst. Rabia Bibi v. Abdul Qadir and others 2016 CLC 1460; Amjad Masih v. Mst. Bushra Bibi 2010 YLR 1468 and Waqar Haider Butt v. Judge Family Court and others 2009 SCMR 1243 ref.

Asim Khan Sherwani for Petitioner.

Muhammad Tauqeer Ashraf and Muhammad Tauseef Tariq for Respondent No. 3.

ORDER

JAWAD HASSAN, J.---Through this constitutional petition, the Petitioner has called in question consolidated judgment and decree dated 12.06.2017 passed by Judge Family Court, Gojra, whereby he dismissed the petition of the Petitioner and accepted the Respondent's petition being real mother of the minor. Feeling aggrieved, the Petitioner preferred appeal before the learned Additional District Judge, Gojra, who dismissed the same vide judgment and decree dated 21.10.2017.

2.Succinctly, the facts for the disposal of this constitutional petition are that Muzammil Hussain, the Petitioner filed application for custody of minor Talha Muzammal with the averments that Nikah between the Petitioner and the Respondent No.3 was performed on 9.7.2005 according to Muslim Rites. Out of this wedlock, the minors Muhammad Anas Muzammal and Muhammad Talha Muzammal were born. Both the parties filed petitions for the custody of minors. The learned trial court dismissed the petition for custody of Talha and allowed the petition for custody of Muhammad Anas in favour of the Respondent No.3 through consolidated judgment and decree dated 12.06.2017. Feeling aggrieved, the Petitioner preferred appeal before the learned Additional District Judge, Gojra, who dismissed the same vide judgment and decree dated 21.10.2017. These concurrent findings of facts have been assailed through this constitutional petition.

3.Counsel for the Petitioner has argued that judgments passed by two courts below are result of misreading and non-reading of evidence. He has further argued that the Respondent No.3 herself deposed that she left the custody of the minor Anas Muzammal with the Petitioner for the sake of his studies. He argued that it is well settled principle of law that a father being natural guardian has a preferential right of custody of minor if the minor is a male child and has exceeded the age of seven (7) years although this ruling is subject to welfare of the minor but both the courts below have failed to appreciate that how the welfare of minor Anas Muzammal lies in handing him over to the Respondent No.3 instead of the Petitioner. In support of his contentions, he has placed reliance upon Shahbaz Ahmad v. Additional District Judge and others (2014 YLR 1374), Mst. Rubia Jilani v. Raja Zahoor Akhtar and 2 others (1996 CLC 1603) and Mst. Mahmooda Begum and another v. Taj Din (1992 SCMR 809). Lastly, he prayed for setting aside of the impugned judgments and decrees.

4.Conversely, the counsel for the Respondent No.3 has supported the impugned judgments and decrees by contending that both the courts below have correctly appreciate the evidence on record and rightly evaluated the same in its true perspective, therefore, no exception can be taken to it in constitutional jurisdiction. In support of his contentions, he has placed reliance upon Zafar Hayat v. Mst. Shamim Bibi and 2 others (2009 CLC 697), Mst. Bakhat Bibi v. Bahadur Ali and others (2015 CLC 1260), Mehmood Akhtar v. District Judge Attock and 2 others (2004 SCMR 1839), Mst. Rabia Bibi v. Abdul Qadir and others (2016 CLC 1460) and Muhammad Ayub v. Mst. Nasim Begum and another (1996 CLC 1534). While relying upon the above said judgments the counsel for the Respondent No.3 has argued and laid much emphasis that there is no substitute to real mother; the lap of mother is cradle of God; remarriage of the mother, ipso facto would not disentitle her from retaining the custody of minor; the poverty of mother was no ground to disentitle her from the custody of the minor and the Islamic law was subservient to the welfare of the minor. Lastly, he prayed for dismissal of the writ petition.

5.Arguments pro and contra have been heard and record perused.

6.It is reflected from perusal of record that minor Anas Muzammal was born on 4.4.2016 and so called better facilities claimed by the Petitioner does not disentitle the Respondent mother from the custody of the minor. Further the poverty on the part of a mother is no ground to disentitle her from the custody of the minor. It is also evident from record that the Respondent mother has been looking after her minor since his birth and maintaining him in a good environment. It has come on record through cogent and confidence inspiring evidence of the witnesses and even statement of the Petitioner that the Petitioner has failed to provide maintenance to the minor till date. It is a settled law that non-maintenance on the part of the

father would not automatically disentitle him from the custody of his child but this would be one of the reason for determining the welfare of the minor. Reliance in this respect is placed upon Mehmood Akhtar v. District Judge, Attock and 2 others (2004 SCMR 1839), wherein it has been held as under:-

"The right of custody of minor is not an absolute right rather it is always subject to the welfare of the 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 settle principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammad 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."

One of the pleas of the Petitioner is that the Respondent No.3 is working as Lady Health Visitor and she cannot give proper time to minors, therefore, she is not entitled for the custody of minors. Whereas, it has come in evidence of AW-1 that the Respondent mother was terminated from her service in the year of 2006. It has also come in evidence produced before the trial court by the Respondent No.3 that daughters of the Petitioner gave poison to her during her pregnancy and RW-2 Muhammad Junaid supported the said stance of the Respondent mother. Furthermore, when the Respondent No.3 being mother is not safe from the brutalities of step son and step daughters of the Petitioner, then how can the minor Anas will be safe himself from the brutal behavior of step brother and sisters. The poverty and poor financial status of mother, does not disentitle her from the custody of the minor Reliance in this respect is place upon Mst. Rabia Bibi v. Abdul Qadir and others (2016 CLC 1460), wherein it has been held as under:-

"No substitute to real mother. Lap of mother was cradle of God. Remarriage of the mother, ipso facto, would not disentitle her from retaining the custody of minor. Poverty of mother was no ground to disentitle her from the custody of the minor. Poverty of mother was no ground to disentitle her from the custody of the minor. Islamic law was subservient to the welfare of the minor."

The Superior Courts in number of judgments have held that there is no substitute of mother and no one could take care of minors more than their real mother for being their first institution and depriving minors of the company of their real mother would create deprivation in their lives, which could not be restored back. Reliance in this respect is placed upon Amjad Masih v. Mst. Bushra Bibi (2010 YLR 1468).

7.It is evident that the concurrent findings of facts have been passed against the Petitioner. It is settled proposition of law that this Court does not interfere with the findings of facts arrived by the primary Courts when it is satisfied that the findings of both the learned Courts below are reasonable and were not arrived at by disregarding any of the provisions of law or any settled principle concerning appreciation of evidence. Learned counsel for the Petitioner could not point out that the findings of fact recorded by both the learned Courts below, are against evidence or were patently improper or perverse that to accept it could amount to perpetuating a grave miscarriage of justice. The constitutional jurisdiction is ordinarily discretionary in character. He who seeks equity must come with clean hands. The concurrent findings of both the learned Courts below on the question of fact cannot be interfered by this

Court in view of the latest pronouncement of Hon'ble Supreme Court in case titled "Waqar Haider Butt v. Judge Family Court and others" (2009 SCMR 1243). No infirmity or illegality has been pointed out in both the impugned judgments of the learned Courts below, which are in accordance with law and the same are hereby maintained.

In view of the above, the petition in hand is without any merits, the same is hereby dismissed.

MQ/M-188/L Petition dismissed.