1. MUNIB AHMED KHAN, J.--- The petitioner being aggrieved by the order of Guardians and Wards Judge, dated 13-7-2005, as well as against the judgment, dated 31-10-2005 passed in appeal by learned 1st Additional District Judge has preferred this constitutional petition on the ground that he being the father is in a better position to maintain the girl namely Komal aged about 12 years and is entitled to her custody and that both the trial as well as Appellate Court have not appreciated the Islamic Provisions of Law. He has further submitted that the petitioner belongs to Shia Sect, therefore, petitioner is more entitled to the custody of the girl. He has further submitted that before the Court there was no issue of second marriage of the petitioner which was contracted during pendency of proceedings, but even then Courts have discussed that factual position and its effect on the custody and that the learned trial Court has talked with the ward in chamber but even then learned Courts have not passed proper order and by that way very fundamental right of the petitioner granted to him by the Constitution has been flouted i.e. as Islamic spirit i.e. Qur'an and Shariah has not been followed. He has also stated that respondent has no source of income, therefore, she cannot maintain the minor. To support his contention, learned counsel for the petitioner has relied upon PLD 1994 (AJ&K) 1; 1985 SCMR 1367; PLD 1987 Lah. 263; PLD 1995 Lah. 441; 1998 SCMR 1593; 1995 CLC 800.
2. In PLD 1994 (AJ&K) 1, it has been held that welfare of minor being a paramount consideration, children if capable of making intelligent preference their opinion should not be ignored. In that case children were of the ages ranging from 10/11 to 13/15 years and their desire to remain with the mother was considered.
3. In 1985 SCMR 1367, it has been held that in case mother remarrying a stranger and boy of 12/13 years desires to remain with mother, therefore, due regard was to be given to the wishes of the minor who was capable of making intelligent/reasonable preference.
4. In PLD 1987 Lah. 263, it has been held that while disposing of an application under Guardians and Wards Act, the predominant consideration is welfare of the child whose custody is claimed by the rival parents but no where personal law applicable to the parties cannot be ignored altogether.
5. In PLD 1995 Lah. 441, it is held by the Court that status quo prevailing in respect of the adjustment of the minor should not be disturbed as the minor may suffer academically and psychologically. In that case on the ground of welfare of minor, the custody of the minor was given to the father.
6. In 1998 SCMR 1593 custody of the minor was claimed by the father on the ground that the minor's mother died when he was 15 days old and was brought up by his maternal-aunt at the request of his father. All the Courts including High Court granted the custody to the father but the Honourable Supreme Court reversed the finding and handed over the custody to the maternal-aunt who brought up the child.
7. In 1995 CLC 800 it has been held that provisions of Guardians and Wards Act relating to custody of minor have to be examined and determined in accordance with Islamic Injunction and that the Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) provide guidance and basis of several principles relating to Rizaat and Hizanat.
8. On the other hand learned counsel for the respondent has strongly objected to the maintainability of the petition on the ground that there is concurrent findings of facts and both the trial as well as Appellate Court have reached, the conclusion after recording of evidence and taking intelligent view of the minor that the welfare of the minor lies with the mother. He has also argued that the petitioner is not a Shia and it shows his mala fide intention as Nikahnama and divorce given by the petitioner to the respondent is in accordance with Sunni faith and there is no "Seegaas" at the time of divorce. He has also argued that there are two daughters and one has been taken away by the petitioner and by that he has committed cruelty by creating a gulf between the two sisters. He has further argued that the father has remarried and the minor is not safe with the step-mother or at least could not be provided motherly love and affection. The mother is highly educated i.e. M.Sc. and is a teacher in Karachi. She is getting her younger daughter educated in Convent School. He argued that for the sake of children the respondent has not remarried and that the welfare of the children will be with her. To support his contention he has relied upon 2002 CLC 1416; 2003 SCMR 1344; 1973 MLD 202 and 2002 SCMR 821.
9. In 2002 CLC 1416 the Honourable Supreme Court has said that poverty on the part of mother, was not a ground to disentitle her from the custody of minor and that father was obliged under the law to maintain the child.
10. In 2003 SCMR 1344 the mother was considered to be fit person to be appointed as a guardian notwithstanding the fact that father has made allegations of infidelity against her and that she is illiterate with no source of income.
11. In 1973 SCMR 1, the custody of minor child of 8 years was given to the maternal-grandmother.
12. In 2002 MLD 202 it has been held that no one can give love to child more than the mother and that to separate two sisters from each other was nothing but a mechanical and cruel act and that both the minors had a right to share the joy of childhood and it will be in their welfare if they are brought up together.
13. In 2004 SCMR 821, it has again been held that poverty of mother is no ground and father is responsible for maintenance of minor.
14. I have considered the arguments of the learned counsel and have perused the order of the trial Court as well as of Appellate Court. Both the Courts below have discussed all the above issues in detail and have discussed several authorities.
15. I have myself called the ward in Chamber and discussed with her about her guardianship. The minor appears to be of intelligent age and could make the preference but was hesitant, anyhow, she being a girl of tender age could not conceal her expression from which I observed a lot. On the issue of petitioners faith as to whether he is a Shia or Sunni, he was called in witness-box and was required to recite "Kalma" of Shia sect but he could not and the Shia counsel present in Court also observed that situation. It appears that keeping in view the classification in Shia Law and some easier approach towards the guardianship under the Shia Law, the petitioner pretended to be Shia while he was not this factual position has also been supported by the Nikahnama and divorce deed on record which are under Islamic Law. All the authorities cited by the petitioner do not come in his favour as they are given on different factual position but the basic aim of the authorities is welfare of the minor. The authorities cited by the respondents counsel are also on the ground that irrespective of education or source of income of the mother, she is entitled to custody and that father is under obligation to support and provide maintenance to the child. It is not disputed by the petitioner counsel that the petitioner has married and the minor was residing with her step-mother who cannot be compared with the real mother who has been contesting the matter for more than 2 years. From several pronouncements by the superior Courts including the authorities cited by both the learned counsel there cannot be two opinions that the Qur'an and Sunnah provided basic guideline to be followed while the question in respect to the custody (Hizaanat) is decided by the Courts, but this guideline is in addition to the principle that the welfare of the minor is a paramount consideration and since ward is subject-matter of such proceedings, therefore, the Courts exercising parental jurisdiction must keep his interest and welfare in mind. During the course of hearing the girl was allowed to remain with the mother and site besides her, therefore, I could observe that despite the fact that she remained away from the mother in the past 2 years she was very comfortable with her mother.
16. In the circumstances, the petition does not merit and it is dismissed with no order as to costs.
17. By a short order reproduced below, I have dismissed the petition and these are the reasons for the same.
18. "Today the arguments of the learned counsel heard on the petition. I have myself examined the ward Komal. Since there was ground on the part of the petitioner that he belongs to Shia sect, therefore, he was also examined but his version was found to be incorrect as even he could not recite the Kalma of Shia sect in the Court.
19. Under the circumstances and for the reasons to be recorded, this petition is dismissed. Ward Komal is present in Court, she is given in the custody of mother and the meeting time with the father which is granted by the Guardians and Wards Act is maintained."