' Instant Constitutional petition seeks judgments/orders dated 8-6-2004 and 8-12-2004 passed by the learned Guardian Judge and learned District Judge, Attock, to be declared illegal, void and of no legal consequence, whereby custody of minor daughter and son of the parties was ordered to be handed over to respondent No. 1.
2. Precisely, relevant facts are that respondent No.1 married with the petitioner on 20-11-1986 and cohabitation between the spouses gave birth to a daughter Mst. Naila Bibi and a son Farhat Abbas, who are at present about 15-1/2 and 13-1/2 years of ages respectively. Relations between the spouses did not remain cordial and ultimately ended in divorce on 19-10-1996 through Court on the basis of Khula. Since the minors were in custody of the petitioner, she leaving them with their old/ailing maternal grandmother, solemnized second marriage with one Zahoor Shah, not within the prohibited degrees of the minor Mst. Naila Bibi. On 15-10-2003 petitioner on behalf of her minor children filed a suit for recovery of their maintenance allowance which was ultimately decreed and the minors were awarded maintenance at the rate of Rs.500 per month per head with effect from 1st May, 2002 to October, 2003 and at the rate of Rs.650 per month per head from November, 2003 onward. Respondent No.1 also filed as application under section 25 of the Guardians and Wards Act, which was contested by the petitioner, but was accepted by the learned Guardian, Judge, Attock on 8-6-2004.
3. Petitioner aggrieved of the decision of the learned Guardian Judge, filed an appeal before the learned District Judge, but remained unsuccessful as the same was dismissed on 8-12-2004. She has now filed instant Constitutional petition with the prayer, noted above. Respondent No.1 in response to notice by this Court has appeared and is represented through counsel.
4. Learned counsel for the petitioner submitted that both the Courts below contrary to provisions of section 17(3) of the Guardians and Wards Act neither summoned the minors nor took into consideration their intelligent selection amongst the parents for their future, thus the impugned judgments are not sustainable at law. It was also argued that it was in the welfare of the minors that they should have been allowed to remain in the custody of the petitioner, who being their mother, was in a better position to help their better brought up. Learned counsel for the petitioner further argued that the minors are living with their mother since their birth, whereas respondent No.1 has never cared to look after their welfare, hence deprivation of petitioner from the custody of the minors, would adversely affect the future of the minors.
5. Learned counsel appearing on behalf of respondent No.1 refuted the arguments of the petitioner, supported the concurrent judgments of the two Courts below and argued that petitioner after her second marriage has lost her right of custody under Muslim Law and that she has already given birth to two children from her second marriage, thus it would be against the welfare of the minors to allow them to remain with her. It was further submitted that the minors whose custody has concurrently been ordered to be handed over to respondent No.1 are living with their maternal grandmother at Haripur who being an old/ailing lady is not a position to look after their affairs because they have entered into very sensitive ages. Learned counsel for the respondent also urged that both the parties belong to a different sect, as respondent No.1 is Shia by faith and petitioner is a follower of Hanfi sect, hence the custody of the minors has to be given to the father to follow his religious faith. According to him, respondent No.1 though has also entered into a second marriage, but he has no offshoot from the second marriage and it is in the interest of the minors that their custody should be given to him as they will be in better position to nourish in a healthy atmosphere.
6. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Besides the fact that both the learned Guardian Judge and the learned appellate Court have concurrently decided that custody of the minors be given to respondent No.1, the mother, petitioner having entered into a second tie of marriage with a person, not within the prohibited degrees of her daughter of the age of 14 years, is disqualified to have her custody. Both the minors have crossed the ages of Hizzanat and the mother being disqualified, their custody is right of the father under Mahomedan Law. Though provisions of section 17(3) of the Guardians and Wards Act are directory in nature, yet in order to see whether some intelligent selection amongst their parents by the minors is in their welfare, they were summoned. Both the minors elected to remain in custody of the petitioner and also admitted that they are one stage had been putting up with their maternal grandmother at Haripur. Since the minors living with the petitioner at least from the date of divorce between the spouses, their choice of remaining with her is not surprising but their living with the petitioner is not in their welfare.
Petitioner's husband has no interest in proper bringing up of the minors and one of them being a female of the age of 14 years, it is not safe for her to live with the petitioner. On the other hand, respondent No.1 who has a right to claim custody of his minor children, in spite of second marriage as he has no offshoot therefrom. It appears that a woman without any child would not give step- motherly treatment to the children and that too while living with their real father. Respondent No.1 might have acted in counterblast to the maintenance suit by seeking custody of the minors, but it being his vested right, he cannot be deprived of the same on imaginary grounds. The judgments relied by the learned counsel for the petitioner, proceed in peculiar facts and circumstances of the cases which were altogether different to the case in hand. Besides the reasons noted above, both the learned Guardian Judge and the learned District Judge, Attock have given reasons in support of their respective decisions and I am not persuaded to take a different view, to the one taken by them. Even otherwise, a lawful decision taken by the Courts within the ambit of their jurisdiction conferred by law, can neither be interfered nor can be substituted in Constitutional jurisdiction of this Court.
7. For the reasons noted above, no illegality could be pointed out to have been committed by the Courts while passing the impugned orders which being not arbitrary/fanciful, are immune from indulgence by this Court. This Constitutional petition accordingly having no merit in it, is dismissed with no order as to costs.