Mst. Salma Bibi etc VS Nawzb Zada

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Writ Petition No.1863-P/2025

Mst. Salma Bibi and 1 another.............Petitioners. Versus Nawab Zada Khan etc..................Respondents.

Present:

M/s Ammad Ahmed Sidiqui & Asma, Advocates, for the petitioners.

Mr. Inayat Ur Rehman, Advocate, for the respondents.

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through this single judgment, I intend to decide the instant writ petition as well as connected W.P No.2412-P/2025, titled “Nawab Zada Khan vs. Mst. Salma Bibi etc” as both these petitions have arisen out from a consolidated judgment and decree of learned Additional District Judge-XV, Peshawar dated 08.02.2025, whereby the appeals filed by the parties were dismissed and thereby maintained the judgment and decree of the learned trial Court dated 24.09.2024 who vide the same had partially allowed the custody of minors’ petition of respondent No.1/plaintiff.

2.Succinctly stated, the facts giving rise to the instant petition are that respondent No. 1/plaintiff instituted a petition seeking custody of the two minors, namely Abdul Wasey Khan (respondent No.

2)and Minha Nawab (petitioner No. 2), in which petitioners/defendants were summoned, who appeared and submitted their written reply, raising various legal and factual objections. In view of the divergent pleadings of the parties, the learned trial Court framed necessary issues and the parties were asked to produce their respective evidence, which they have accordingly led and then after hearing learned counsel for both parties, the learned trial Court/Judge Family Court-I, Peshawar vide judgment and decree dated 13.06.2023 has passed the following decree:-

“In the light of findings on the above discussed issues, the case is decided as follows:

 The father/petitioner is held entitled to recover permanent custody of minor son/respondent No. 02 Abdul Wasey Khan subject to any immediacy of threat to the interest and welfare of minor in continuance of such custody.

 The permanent custody of minor daughter/respondent No. 03 is retained with mother/respondent No. 01 subject to any immediacy of threat to the interest and welfare of minor in continuance of such custody.

 Parties are entitled to exercise visitation right with the minors as per defined schedule.”

Being aggrieved from the findings of the learned trial Court, both the parties approached to the learned Additional District Judge-XV, Peshawar by filing their respective appeals, who vide consolidated judgment and decree dated 08.02.2025 maintained the judgment and decree of the learned trial Court and dismissed the appeals filed by both the parties; hence, the instant and connected constitutional petition.

3.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

4.The record would show that the parties had contracted marriage in the year 2014 and then they were blessed with two children, namely, Abdul Wasey Khan (respondent No.2), aged about ten

(10)years, and Manha Nawab, aged about six (6) years; however, in the year 2021, the parties parted ways after the respondent-husband divorced the petitioner, whereafter the present controversy qua the custody of the minors has arisen. In support of their respective pleas, both the parties have produced substantial evidence and both of them have shown their high degree of desire and commitment to provide the minors with all necessary

facilities relating to their health, education, clothing, and overall upbringing. When respondent No.1 appeared in the Court as PW-1, he has leveled certain allegations against the petitioner-wife, asserting that she has been guilty of an irresponsible and casual mother and that, owing to her unsocial, inhumane, and unethical conduct, the minors have suffered severely. He has further deposed that petitioner-wife has remained negligent regarding the proper education and health of the minors and as against this, he has stated that, being an educated person, he was aware of the negative impact of the conduct of the petitioner-wife on the two minors; therefore, he has put an extra effort to ensure that such conduct may not affect the two minors. It is also relevant that the aforesaid assertions, as made by the respondent-husband in his examination-in-chief, have not been effectively controverted by the petitioner-wife. Likewise, when the petitioner-wife appeared as RW-1, she has leveled allegations against respondent-husband, which primarily revolve around his alleged relationship with a girl namely Hajira. She, in her statement, has not even alleged that because of the conduct of the respondent-husband, the two minors are suffering. In her cross-examination, she has

admitted that she has visited the school of minor Abdul Wasey Khan only once. She has further admitted that the respondent-husband is an educated person serving in the Federal Investigation Agency (FIA) at Islamabad. She also acknowledged that all basic social amenities and facilities are available at the residence of the respondent-husband. Furthermore, while explaining the reason behind the divorce, she has stated that she was divorced by the respondent-husband on 02.06.2021, and that the reason behind the divorce was the respondent-husband's dissatisfaction with the cleanliness of the house. In view of the above facts, it prima facie stands established that the respondent-husband is an educated person employed with the FIA, whereas the petitioner-wife is a house wife. Moreover, neither party suffers from any legal or moral disqualification disentitling them from the custody of the minors and as such the learned two fora below have rightly granted the custody of the two minors between the parents, whereby the custody of the male minor, namely Abdul Wasey Khan, has been granted to the father, whereas the custody of the female minor, namely Manha Nawab, has been retained with the mother.

5.It would be relevant to mention here and as was confirmed by the minor, Abdul Wasey Khan, during his interaction with the Court as well, that he is presently residing with his father in Top City at Islamabad and is receiving education in a nearby school. He was asked, in open Court, about his consent to go either with his father or mother, and he openly and bravely opted that he is happy with his father and clearly refused to go with his mother.

Keeping in view his age, maturity, and level of understanding, coupled with the fact that he is now approximately ten (10) years old, his preference could not be ignored as by now, it is an established jurisprudence that, while determining the question of custody of minor, the Court is required to consider the welfare of the minor irrespective of the choices of contesting parties and as such, while deciding the custody of minor, the Court is also required to consider the preference and wish of the child;

nevertheless, that such preference is to be weighed on the scale of intelligence. It may be reiterated that the preference of a minor is not a decisive factor, but a factor for the Court to also consider the same, provided the minor has attained sufficient maturity to form an intelligent preference and even if such preference is expressed, the same could be ignored

if the Court considers that such consent goes against the minor’s overall welfare. The decisive consideration for a Court is the welfare of the minor and in the process, the preference of the child is one of the factors, which are governed and regulated by section 17 of The Guardians and Wards Act, 1890.

The said section of the Act, being relevant, is reproduced below;

“17. Matters to be considered by the Court in appointing guardian.---

(1)In appointing or declaring the guarding of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2)In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3)If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(5)The Court shall not appoint or declare any person to be a guardian against his will.”

The plain reading of the aforesaid provision of law would show that while appointing a guardian for a minor, the Court must consider the welfare of the minor keeping in view the facts and circumstances of each case and as such, while considering the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor.

Similarly, the Court is also to consider the character and capacity of the proposed guardian and his nearness to the minor and over and above, the same also mandates that if the minor is old enough to form an intelligent preference, then the Court may also consider that preference. Keeping in view the aforesaid yardstick as mandated by the law, this Court has also taken an exercise while making interaction with the minor Abdul Wasey Khan, who, as stated hereinabove, clearly opted that he is happy and comfortable with his father. Similarly, the minor, Manha Nawab, was also present in the Court alongwith her mother; however, keeping her age, she was found as unable to form any opinion;

therefore, the same is not taken into consideration.

Recently, the Hon’ble Apex Court in the case1 has issued a mandatory directive that the child’s voice must be respected in every custody matter, and it was observed that this decision must serve as a directive to all Courts, particularly Family Courts and judges of the District Judiciary: the voice of the child must be heard and respected in every custody and guardianship matter. Any genuine assessment of the child’s welfare or best interests is incomplete without ensuring the child’s meaningful participation in the proceedings, appropriate to their age and maturity. In another case2, the Apex Court has reaffirmed that a minor’s preference is a primary consideration when the minor is of an age to make a reasonable choice, where it was held that it is aximatic that in the matter of appointment of a guardian the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a Court of law for the decision of such cases. Similarly, in another case3, the Apex Court has held that forcing a child to live with a parent he/she/they consider a stranger, against their expressed preference, causes 1 “Dr. Muhammad Asif vs. Dr. Sana Sattar and others” reported as PLD 2026 SC 2358 2 “Gul Sadem Khan vs. Mst. Halima and others” reported as PLD 2025 SC 47 3 “Shaista Habib vs. Muhammad Arif Habib and others” reported as 2024 PLD 629

“unimaginable mental and emotional trauma”, where it was observed that the minor was definitely not prepared nor willing to live with his father at this stage. He unambiguously stated that he preferred to remain in the custody of his mother with whom he had lived since his birth. In such an eventuality the minor would have been compelled, without his consent, to abruptly shift to a new abode where all the inhabitants would have been strangers to him. It would have definitely exposed him to unimaginable mental and emotional trauma. Likewise, the Hon’ble Apex Court in the case4 has held that the foundational authority which first termed the minor’s wish as a primary consideration, where it was observed that it is axiomatic that in the matter of appointment of a guardian the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a Court of law for the decision of such cases. Therefore, in the present controversy too, while maintaining the impugned judgments/orders of the two fora below, due consideration has also been given to this aspect of the case and as such the same are not open for 4 “Mst. Talat Nasira vs. Munawar Sultana” reported as 1985 SCMR 1367

any interference by this Court and that too in our constitutional jurisdiction.

6.During the course of arguments, both the learned counsel representing the parties were confronted that, through their respective petitions, they have prayed for issuance of a writ of certiorari by declaring the impugned orders of the learned Courts below as illegal and unlawful; however, when they were further confronted that, for issuance of the desired writ of certiorari, they have to establish that either the fora below have not properly exercised their jurisdiction or they have illegally exercised their jurisdiction or that they were lacked jurisdiction, thereafter they were unable even to make any reference to such aspect of the case and as such, this Court, being seized of these petitions in its writ jurisdiction, could not interfere in the concurrent findings of the two fora below. In the case5, the Supreme Court of Pakistan has held that certiorari does not lie in order to bring up an Order or decision for re-hearing of the issue raised in the proceedings.

It exists to correct error of law where revealed on the face of an Order or decision or irregularity, or absence of, or excess of jurisdiction where shown.

5 “Muhammad Azim Khan Afridi vs. The President of Pakistan through Principal Secretary and others” reported as 2023 SCMR 68

The control is exercised by removing an Order or decision, and then by quashing it. Similarly, in the case6, the august Supreme Court observed that it is by now a settled principle of law that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower courts merely because it reached a different conclusion as to the controversy than the latter. Likewise, in case7, the Hon’ble Supreme Court held that where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution. The Supreme 6 “Amjad Khan vs. Muhammad Irshad (deceased) through LRs” reported as 2020 SCMR 2155 7 “Chief Executive MEPCO and other vs. Muhammad Fazil and others” reported as 2019 SCMR 919

Court of Pakistan, in case8 also held that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge's hands however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily, such extraordinary jurisdiction shall not be exercised at random and in routine manner.

7.In view of the foregoing discussion, this Court is of the considered opinion that the learned Courts below have rightly appreciated the evidence available on record and have passed well-reasoned judgments in accordance with law. No illegality, material irregularity, jurisdictional defect, or misreading/non-reading of evidence has been pointed out which may warrant interference by this Court in exercise of its constitutional jurisdiction.

The arrangement qua the custody of the minors, as determined by the learned Courts below, appears to be in consonance with the paramount consideration of the welfare and best interests of the children.

8 “Chairman, NAB vs. Muhammad Usman and others” reported as PLD 2018 S.C 28

Consequently, the instant writ petition as well as connected W.P. No. 2779-P/2023 are dismissed.

The judgments and decree passed by the learned Courts below are hereby maintained. Parties shall, however, continue to enjoy visitation rights strictly in accordance with the schedule already determined by the learned Family Court. No order as to costs.

Announced:

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)