1. ' ARSHAD NOOR KHAN, J.--- By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner seeks the custody of his four minor sons and daughters allegedly detained by the respondents, illegally at their house.
2. ' The facts as gleaned out in the petition are that the petitioner and respondent No,1 was married on 8-5-1997 at Ward at Railway Gate Colony, Landhi, P.O. Quaidabad, District Malir, Karachi and after the marriage, they both were residing at Mouza Peelo Tehsil and District Rawalpindi, where the petitioner is also employed in a Government Department at Rawalpindi. It is further stated in the petition that the parties were residing in Rawalpindi without any grievance against each other. The respondents Nos.2 to 4 constantly were instigating the respondent No,1 to leave her house and settle with them at Karachi. It is further stated in the petition that out of wedlock, four children, namely, Isma Iftikhar, was born in the year 2000. Master Hamza Iftikhar was born in the year 2003.
3. Baby Huma Iftikhar was also born in the year 2003 and Master Saharat Ali was born in the year 2005 and they all were admitted in school, namely Al-Haram School System, Chakri Road, Rawalpindi. It is further stated in the petition that on 14-2-2008 all the above referred detnues gone to their school and attended their classes and subsequently, after closing of the school, did not return to the home and when the petitioner came to his house at about 4-00 p.m. It came to his knowledge that the respondents Nos.2 and 3 with the help and connivance of respondent No,1, and in deceitful manner removed and abducted the minors from his custody and confined them illegally at Karachi. It is further stated in the petition that act of the respondents Nos.1 to 4 in removing the custody of the minors and detain them at Karachi is illegal, mala fide and for ulterior motives and the petitioner tried to meet with them but without any success. It is further stated in the petition that the annual examination of the minors are scheduled on 10-3-2008 and their study shall be badly and adversely affected and there is every likelihood to spoil their academic year, hence the petitioner has filed the present petition, praying therein for handing over the custody of his minor children.
4. ' The notice of the present petition was served on respondents and in response to the said notice, respondent No,1 appeared in person.
5. ' I have heard Mr. Malik Asif Tauffique, Advocate for the petitioner and respondent No,1 in person.
6. ' Learned counsel for the petitioner vehemently contended that the petitioner being the natural guardian of the minors is lawfully entitled to keep the custody of minors and to provide them all the amenities and necessities of life but the respondents Nos.1 to 4 have illegally removed the custody of the minors from Rawalpindi and has detained them illegally at Karachi. He also contended that the academic year of the minors going to be spoiled and at least, the respondent No,1 may be directed to produce the minors for the purpose of their examination in their-school so that their academic year may not be spoiled and for that purpose, he has filed affidavit as well as bond in writing in Court during the course of the arguments, thereby stating therein that he will not detain or keep the custody of the minors if they are produced at Rawalpindi, for the purpose of their examination and he is also ready to pay extra examination fee of the minors and, in case, if he will not abide by his bond, a criminal case may be registered against him. According to him, the custody of the minors may be handed over to him, so that the future of the minors may not be ruined.
7. ' The respondent No,1 at the very outset refuted offer made by the learned counsel for the petitioner and has further stated that she being the mother and natural guardian of the minors has all the legitimate rights to keep their custody and she has not detained her children against their wishes, as such, the custody of the minors with her in any way, could not be described as illegal.
8. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
9. ' It is not disputed that the respondent No,1 is the mother and natural guardian of the minors. The learned counsel for the petitioner has also half-heartedly pressed the present petition for the reason that the respondent No,1 is also the natural guardian of minor. Regarding custody of the minors, the paramount consideration for the Court is to keep in mind welfare of the minors. The mother, who has also been given right of Hizanat under the provisions of Guardians and Wards Act, is considered to be best guardian of her children in comparison to the father of the children, because the mother can keep the minors with all love and affection and maintain them nicely and properly and for said purpose even emotional attachment of the minors towards the father could be ignored by the Court.
10. ' For the purpose of awarding custody of the minor, the court is also not required to go into technicalities of law and welfare of the minor is to be kept in mind by the Court. The same point also came for consideration before the Honourable Supreme Court in the case of Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another reported in PLD 2004 SC 1, wherein the Honourable Supreme Court was pleased to observe as under:-- "In our opinion in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petition under section 491, Cr.P.C. Is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the Courts could also pass appropriate orders in exercise of its inherited jurisdiction."
11. ' The dictum laid down by the Honourable Supreme Court in the aforesaid case of Mst. Khalida Perveen, is fully applicable to the circumstances of the present case.
12. ' The undertaking and the affidavit filed by the petitioner thereby binding himself not to detain the respondent No,1 and her children, in case, she is producing them for the purpose of examination in the school at Rawalpindi, looses its effect for the reason that the respondent No,1 has refused the said offer at the time of argument, therefore, no such direction could be given to her in this behalf.
13. ' After appraisal of the whole material available on record, it has been emerged out that neither the respondent No,1 abducted or removed the custody of the minors unlawfully from Rawalpindi nor she detained minors illegally and she being the mother and natural guardian of the minors, has legitimate right to keep their custody with her irrespective of the fact that she possess or not, any means to maintain them as it is primary duty and responsibility of the father to maintain his children till the age of their majority.
14. ' Since no detention of the minors at the hand of the respondent No,1 has been proved as such, keeping in view the dictum laid down by the Honourable Supreme Court in the case of Mst. Khalida Parveen (supra), I find no merits in the present petition, which is hereby dismissed.