Syed Deedar Hussain Shah, J.--By this common judgment we propose to dispose of Civil Petitions Nos, 1246 & 1247 of 2003, which are directed against the judgments of the Peshawar High Court, Peshawar, dated 22.5.2003, passed in Writ Petitions Nos, 251, 370 and 333 of 2003, as common questions of law are involved therein.
2. Briefly stated, the facts of C.P. No, 1246/2003 are that petitioner Sardar Hussain and respondent Mst. Parveen Umer entered into wedlock on 10.5.1990. They enjoyed peaceful life for five years in USA and during the said period out of the wedlock three children were born. In the year 1995 due to strained relations Mst. Parveen Umer came to Pakistan alongwith the minors and settled at Peshawar. Petitioner divorced her through written communication. Respondent married with one Alamzeb at Peshawar with whom she resides alongwith 3 minors and from this wedlock she got 2 children. On 19.6.2000 petitioner filed Petition No, 52/2 of 2000 in the Court of Guardian Judge/Civil Judge, Peshawar, which was allowed by judgment dated 25.4.2001, but on appeal filed by the respondent, the Appellate Court set aside the aforesaid judgment and decree vide judgment dated 6.3.2002. Feeling aggrieved, petitioner filed Constitutional Petition in the Peshawar High Court, which was dismissed vide impugned judgment dated 22.5.2003.
3. Similarly the brief facts of C.P.No, 1247/2003 are that respondent-Mst. Parveen Umar filed a suit against petitioner Sardar Hussain, in the Court of Judge Family Court, Peshawar, for recovery of dower as well as the maintenance allowance. The Family Court vide judgment dated 8.6.2002, granted decree for recovery of Rs, 50,000/- as dower alongwith 5 marlas plot situated in Satellite Town, Rawalpindi. The said Court also granted maintenance in favour of Mst. Parveen Umer for an amount of Rs, 500/- p.m. from October 1993 to 27.3.1995 for the period of Iddat and also granted a decree for maintenance of Rs, 10,000/- p.m. from September 1993 to October 1999 and till the time the minors/plaintiffs attain majority. On appeal, the Additional District Judge, Peshawar, vide judgment dated 15.11.2002 disallowed the maintenance allowance granted to respondent and also disallowed the cash amount of dower of Rs, 50,000/- to the lady while the rest of the decree of the Family Court was maintained.
Petitioner as well as the respondents challenged the aforesaid judgment and decree of the Appellate Court in the High Court, through separate writ petitions. The High Court partly allowed W.P. No, 251/2003 filed by Mst. Parveen Umar; whereas W.P. No, 333/2003 & 370/2003 filed by petitioner were dismissed vide impugned judgment dated 22.5.2003.
4. Hence, these petitions.
5. Raja Muhammad Ibrahim Satti, learned counsel for the petitioners, inter alia, contended that father is entitled for custody of the sons who have attained the age of 7 years; that mother/Mst.
Parveen Umer had contracted second marriage and is also having children from her second husband, therefore, she is not entitled to retain the custody of minor sons in her house; that the impugned judgments of the High Court as well as First Appellate Court are based on surmises and conjectures and are not sustainable in law; and that this Court may pass necessary order by allowing visiting right to the petitioner with his children. In support of his contentions learned counsel has relied on Azmat Ali v. Chief Settlement & Rehabilitation Commissioner (PLD 1964 SC 260), Federation of Pakistan v. Muhammad Ishaque (PLD 1983 S.C. 273) and Mst. Seema Chaudhry v. Ahsan Ashraf Sheikh. (PLD 2003, S.C. 877).
6. Haji Muhammad Zahir Shah, learned counsel appearing on behalf of the respondent supported the impugned judgments of the High Court by arguing that the learned High Court after examining and analyzing the material available dismissed the petitions of petitioner-Sardar Hussain and allowed the writ petition of Mst. Parveen Umer respondent; that the impugned judgments are in accordance with the law laid down by this Court. In support of his contentions he cited Mst. Nighat Firdous v. Khadim Hussain (1998 SCM R 1593, at page 1596).
7. We have carefully scanned the available record and found that thee learned High Court had considered the case in its proper perspective, and the impugned judgments are based on the proper appreciation of relevant material and law laid down by this Court. The paramount consideration for custody of minor in his welfare, which has been kept in view by the learned High Court. While deciding the matter the learned Division Bench of the High Court also considered and interpreted the ikahnama produced before the trial Court, which we have also perused. The conclusion drawn by the learned High Court, in our humble opinion, is entirely based on the law and in consonance with the welfare of the minors.
7. Now we would like to discuss the citations referred to by learned counsel for the petitioner. In Syed Azmat Ali's case (supra) this Court has held that "Superior Court exercising writ jurisdiction has "full power to do justice" but not to "substitute its own decision for decision of inferior authority".
In Federation of Pakistan's case (supra) while interpreting the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, this Court observed that "restrictions on the right of alienation imposed by custom of persons inheriting agricultural land before 16.3.1948 cannot be imposed in Islam."
In Mst. Seema Chaudhry's case (supra) the observation of this Court is in the following terms:-- "Notwithstanding the right of the mother or father for the custody of male or female child under the personal law, the predominant consideration in determining the question of custody of minor is always the welfare of the minor
9. In Mst. Nighat Firdous case, cited by learned counsel for the respondent, this Court held as under:-- "10. It would, thus, he seen that welfare of the minor is the paramount consideration in determining the custody of a minor. The custody of a minor can be delivered by the Court only in the interest and welfare of the minor and not the interest of the parents. It is true that a Muhammadan father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. The right of the father to claim custody of a minor is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct, depending upon the facts and circumstances of each case. In this case, the respondent-father, who sought custody of the minor, neglected the child since his birth. The minor had admittedly been under the care of the appellant since the death of his mother. Thus, visualized, the mere fact that the minor has attained the age of seven years, would not ipso facto, entitle the respondent-father to the custody of the minor as of right. Furthermore, the respondent filed application for custody of the minor, subsequent to the application made by the appellant claiming maintenance for the minor. This circumstance also cast aspersion on the bona fides of the respondent. We are of the view that the minor, who has been living with the appellant almost since his birth and was being looked after properly, his welfare lies with her and not with his father, who has not taken any interest even in defending this appeal and oppose the interim order dated 5.4.1994 passed by this Court, whereby status quo in respect of custody of the minor was directed to be maintained. The preference of the minor, in guardianship cases, is ordinarily taken into consideration but it is not always relevant because the minor is not the best judge of his/her welfare. It is for the Court to determine as to whom the custody of the minor should be delivered in his/her welfare. In the instant case, we find that the welfare of the minor, who is now about 15 years old, lies in retaining the custody with the appellant."
10.It would be more advantageous to refer here the relevant paragraph of the impugned judgment, passed in C.P. No, 1246/2003, which reads as under:-- "During the pendency of this petition through an order all the 3 minors were entrusted to the petitioner for more than 15 days. After staying with the petitioner for such time when we examined the minors today in Court we found no change in their mind or any tendency of entertaining inclination towards their father i,e, the petitioner. We found them fairly intelligent by giving rational answers and they proclaimed that the petitioner is alien for them thereby showing sentimental attachment with their mother. They are admitted in a standard school, getting education, clothes, food and are enjoying every facility of life in their mother house."
11.It reveals from the above facts that contentions of learned counsel for the petitioners are not supported by the record and material available. In our humble view the plethora of case law cited by him is different, distinguishable and is not applicable/helpful to the case of the petitioners; whereas the citation referred by learned counsel for the respondent is very much relevant and helpful to the case of Mst. Parveen Umer.
12. For the facts, circumstances and reasons stated hereinabove, we are of the considered view that these petitions are without merit and substance, which are dismissed alongwith the listed applications and leave to appeal declined.
13.Before parting with the judgment, we would like to observe that petitioner-Sardar Hussain may approach the proper forum for allowing visiting terms to his children and the Court, who seized of the matter, after hearing the parties, will pass appropriate orders in accordance with law.