Fawad Khalid S/o Khalid Bin Rasheed Zahid (Petitioner) VS VIth ADJ, Karachi Central and Others (Respondent)

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.S-972 of 2023 [Fawad Khalid ......v...... VIth Additional District Judge Central Karachi & others] Date of Hearing : 29.01.2024

Petitioners through : Dr. Raana Khan, Advocate.

Respondents through : Mr. Khalid Mehmood Siddiqui, Advocate.

ORDER

Zulfiqar Ahmad Khan, J:- This petition challenges successive judgments in favour of respondent No.3 mother rendered by learned Family Judge-XIV, Karachi Central in Family Suit No.2830 of 2019 and Judgment dated 05.09.2023 passed by learned Additional District Judge-VI Central Karachi in Family Appeal No.71/2022.

2.The respondent No.3 filed a family suit bearing No.2830/2019 before learned Family Judge Central Karachi for recovery of dowry articles, maintenance and custody of the minor which was decreed by the learned trial Court vide Judgment dated 30.05.2022. The petitioner father impugned the said judgment of the learned trial Court before the Appellate Court by filing Family Appeal No.71/2022 which appeal of the petitioner was dismissed, hence the petitioner is before this Court against the concurrent findings.

3.The petitioner’s entire case was premised on the argument that the welfare and wellbeing of the children is always with the father as the mother/respondent No.3 is not doing any job for livelihood, therefore, the custody of the minor be handed out to him and concurrent findings be set aside. She lastly contended that the

minor does not want to live with the mother whose consent is necessary.

4.Conversely, learned counsel for the respondent No.3 submitted that this petition challenges concurrent findings in family matter which is not maintainable. He further contended that the learned Family Court as well as Appellate Court granted custody of the minor to the respondent mother and that the petitioner father is not handing over the custody to the mother and even four years have been passed the mother could not see her son, therefore, directions be issued to the petitioner father to comply with the concurrent findings and handout the custody to the mother.

5.I have heard learned counsel for the petitioners at length and have also scanned the available record. I would take liberty in reiterating established legal principle, so enunciated by apex Court, in matters of custody of minor(s) that welfare of the minor shall always be the paramount consideration rather a decisive factor, however, the poverty of lady/mother (respondent No.3) alone would not be sufficient to hold her disentitled for custody of minor as legally the burden to maintain the child lies on father. (Mst. Razia Bibi v. Riaz Ahmed and another (2004 SCMR 821). In a recent judgment the honourable apex Court in the case of Mst. Mubeena v.

Raja Muhammad and another PLD 2020 SC 508 while reaffirming the legal position of any agreement between parents over custody as invalid went on in holding that even physical disability of mother would not be sufficient to hold her disentitled from the custody of the child. The operative part reads as:-

“11. The principles of Policy (the Principles') set out in the Constitution is the path, and the

destination, that the nation has set for itself. The Principles require that, 'Steps shall be taken to ensure full participation of women in all spheres of national life'. If women with physical life stand excluded from participation in family life and excluded from the much higher proclaimed objective of participation in all spheres of national life. The Principles also require that the State shall protect 'the mother and the child'. If child is taken away from the mother, deprived of her love and benefit of her upbringing the mother and the child's relationship is fragmented.”

6.I would further add that a legitimate child can't come to existence without parents’ love, affection, and care of both the parents is, always, in the best interest of the child and his (child's) growth, therefore, a balance is always to be maintained while making decision in the matter(s) of custody of the minor. I would also add that the law does recognize the right of Hizanat which itself is an indication of the fact that in matters of custody of the child with reference to gender the age of child matters. This, being the rule of Muslim and Nature’s Law itself, needs to be given weight. All these aspect(s) are always to be appreciated while making a decision on the question of fitness of parents for custody of the child.

8.Reverting to the contention of the learned counsel for the petitioner father to the effect that the minor does not want to go to the respondent mother. To meet with the said contention, I may say that the minor is away from the mother and the Court can reject the minor’s preference if it finds that he has been tutored or is acting against his interest1.

9.It is common knowledge that the object of exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) is to foster justice, 1 Muhammad Afzal v. Parveen Bibi (2017 MLD 1116)

preserve rights and to right the wrong where appraisal of evidence is primarily left as the function of the trial court and, in this case, the learned Family Judge which has been vested with exclusive jurisdiction. In constitutional jurisdiction when the findings are based on mis-reading or non-reading of evidence, and in case the order of the lower fora is found to be arbitrary, perverse, or in violation of law or evidence, the High Court can exercise its jurisdiction as a corrective measure. If the error is so glaring and patent that it may not be acceptable, then in such an eventuality the High Court can interfere when the finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where an unreasonable view on evidence has been taken. No such avenues are open in this case as both the judgments are well jacketed in law. It has been held time and again by the Apex Court that findings concurrently recorded by the courts below cannot be disturbed until and unless a case of non-reading or misreading of evidence is made out or gross illegality is shown to have been committed. 2

10.In view of the rationale and deliberation delineated above, the petition at hand is dismissed.

Karachi Dated: 29.01.2024.

JUDGE

Aadil Arab.

2 Per Sardar Tariq Masood.J in Khizar Hayat v. Additional District Judge Kabirwala PLD 422), Farhan Farooq v. Salma Mahmood (2022 YLR 638), Muhammad Lehrasab Khan v. Mst. Aqeel un Nisa (2001 SCMR 338), Mrs. Samina Zaheer Abbas v. Hassan S. Akhtar (2014 YLR 2331), Syed Shariq Zafar v. Federation of Pakistan & others (2016 PLC (C.S) 1069).