' MUHAMMAD AFZAL SOOMRO, C J.---Perusal of the record transpires that the respondent No,1 filed an application under section 25 of the Guardian and Wards Act, 1890 bearing G & W Petition No,36 of 2006 wherein she prayed that she may be appointed as Guardian of Wards Ali Muhammad and Hyder Ali and hand over their permanent custody. The respondent No,1 also filed an application under section 12 of the Guardian and Ward Act wherein she prayed for temporary custody of the wards. The trial Court on 4-7-2006 passed an order on an application under section 12 of Guardians and Wards Act and ordered the petitioner to hand over the temporary custody of the wards to the respondent No,1. In compliance thereof the petitioner handed over the custody of wards to the respondent No,1 on 8-11-2006.
2. The learned IInd Civil and Family Judge, Karachi (East) passed a judgment and decree in favour of respondent No,1 in G & W No,36/2006. The petitioner preferred in Appeal bearing No,37 of 2007 under section 47 of Guardian and Ward Act, 1890 read with section 14(2) of the West Pakistan Family Courts Act, 1964 to the learned District and Sessions Judge Karachi (East) which was subsequently transferred to learned 1st Additional District Judge, Karachi (East). The appellate Court dismissed the Family Appeal and upheld the judgment of the respondent No,2 hence the petitioner preferred the instant petition.
3. Learned counsel for the petitioner argued that both the below Courts have passed erroneous judgments which are not according to the law, facts and circumstances of the case and the reasons mentioned in the judgments either are not available on record or have been misread as such judgments are suffering from misreading and non-reading of record. As such impugned judgments and decrees dated 2-4-2007 and 27-10-2007 .Passed by respondents Nos. 2 and 3 are illegal void ab initio arbitrary and without justification. The judgments were relied upon the facts which are not available on record even otherwise cannot be a base for judgment. It is further argued that respondents Nos. 2 and 3 have ignored the well-settled principle of law that the paramount consideration is the welfare of minors. The learned counsel has argued that the respondents Nos. 2 and 3 have failed to appreciate the fact that the respondent No,1 does not have her own house or any other property and is residing along with two minors with her brothers Kaleem Ahmad Siddiqui. Azeem Ahmad Siddiqui, Iqbal Ahmad Siddiqui, their wives, children and younger sisters in a flat which is admitted by the respondent No,1 in her cross-examination. It is argued by the learned counsel for the petitioner that the respondents Nos. 2 and 3 have failed to appreciate the evidence that Iqbal Ahmad Siddiqui who is the elder brother of respondent No,1 was convicted in Dubai in smuggling of narcotics case and remained in Dubai jail. The same fact has been admitted by the respondent No,1 in her cross-examination despite that respondent No,2 in the judgment discussed the point as "there is nothing on record which could show that family atmosphere of the respondent No,1 is not good". Such observations either are misreading or non- reading of the record and cannot be a base for the judgment. The learned counsel for the petitioner has also submitted a copy of Bail Application No,413 of 2007, filed in the Court of learned District and Sessions Judge, Karachi (South) wherein the addresses of three brothers namely Azeem Ahmad Siddiqui, Kaleem Ahmed Siddiqui and Iqbal Ahmad Siddiqui of the respondent No,1 is same. It means that all three brothers and respondent No,1 along with their respective family members including wives and children are living in a single flat which is not in betterment and growth of the minors and would result in prejudce to the future personality of minors namely Ali Muhammad and Hyder Ali. The learned Advocate for the petitioner has argued that the respondents Nos. 2 and 3 have not considered the fact that the petitioner in his Examination-in- Chief has deposed that minors used to go to school regularly before temporary restoration of the custody but minors are not going to the school and the same fact is not denied by the respondent No,1 Hence is admitted which had not been considered by the respondents Nos. 2 and 3 contrary to that respondent No,2 in the judgment observed that "as regards to non-sending of the minors to the school admitted earlier is concerned, the custody of minors is restored to the petitioner by this Court. Obviously one would get the minors admitted in school near ones house according to the financial resources and petitioner have got the minors admitted in the school.
4. The discussions/reasons made by the respondent No,2 are not available on record and never even the respondent No,1 deposed the same facts. The learned Advocate further argued that the respondents Nos.2 and 3 have erred in considering the admitted fact that the respondent No,1 admitted in her cross-examination that the petitioner is Aga Khani Ismaili Shia and she has also admitted the fact that the minors are not going to Jamat Khana for religious and spiritual education. As such the growth of the children must be in accordance with their father's sect and the father should be allowed to train his infants in his own sect. In the instant case the respondents Nos. 2 and 3 have ignored the dictum of law and passed arbitrary judgments ignoring real spirit of law and justice that in the long run ultimately the minors would not adopt the sect of father of the minors have not been provided with the opportunity to go to Jamat Khana, the minors would face difficulties in future and could not be mixed with Aga Khani Shia community. He has further argued that the respondent No,2 has wrongly framed Issue No,2 i,e, "whether the applicant is entitled for the permanent custody of the minors or where the welfare of minor lies". As there is no provision in the Guardian and Wards Act for Permanent Custody of the minors, hence impugned judgments and decrees are liable to be set aside. He further contended that both the Courts below have given the right of hizanat to the respondent No,1 but have not examined the issue that if the minor aged beyond 7 years, the father becomes the natural guardian and the Courts are require do give findings that where the welfare of the minor lies.
5. The learned Advocate for the petitioner has argued that the petitioner has sufficient means and resources to look after the welfare of the minors such as the petitioner has two cars, his own flats in Karachi as well as in Dubai, United Arab Emirates. The same fact has been admitted by the respondent No,1 and is available on record contrary to that the respondent No,1 is residing with her three brothers and their family members in a flat and she has no independent source of income or house. Such fact has not been appreciated by the respondents Nos.2 and 3.
6. The learned counsel for the petitioner Ins stated that the petitioner on 29-4-2007 lodged the F.I.R.
No,49 of 2007 under sections 506-B, 34, P.P:C. At City Courts Police Station, Karachi, against the respondent No,1 and her three brothers for issuing the threats to kill the petitioner and his family as well as to the minors and also used filthy language against the petitioner.
7. On the other hand the learned counsel for respondent No,1 has submitted that both the courts below have passed proper judgments and there is nothing in the judgment contrary to the record and both the courts below have properly appreciated the evidence available on record.
8. The learned counsel for the respondent No,1 has argued that the petitioner is engaged in the business of advertising and having close contacts with other women and used to ignore the respondent No,1 which was the main cause for developing misunderstanding and domestic disputes. He has argued that the judgments of both the Courts below are legal and as per facts and evidences on record. He further stated that evidence brought on record do not suggest that the atmosphere of he house of the respondent No,1 is detrimental to the minors. Further, he submitted that the petitioner has not suggested that the brother of respondent No,1 namely Iqbal Ahmad Siddiqui is residing with respondent No,1, therefore, the contention of the petitioner has no substance in the eye of law. The learned counsel for the respondent No,1 has argued that both the Courts below have passed judgments having considered all factors necessary for welfare of minors so also appreciated the facts and evidence that have come on record and a single aversion given in the judgment does not suggest that the findings in the judgment are based mere upon emotions. He has further submitted that in matters of custody of minors the Court has to see first the welfare of minors and mere ability to maintain the minors is not a good ground for depriving the mother on the ground that she is poor and cannot maintain the minors as father could. The learned counsel has contended that the trial Court has correctly fixed the issue i,e, "whether the applicant is entitled to permanent custody of minors or where the welfare of minor lies". As supreme consideration for the decision of minors' custody, it is the welfare of minor that matters and nothing else. He has advanced the arguments that it has come on record that the step brother of respondent No,1 is not residing with her, therefore, it cannot be said that the family atmosphere of the respondent No,1 is not good.
9. I have given full consideration to the arguments of learned advocates for the parties and have gone through the entire evidence. Admittedly, Ali Muhammad is aged about 8 years old and Hyder Ali is about 5 and a half years old and the petitioner is the real father and is a Ismaili Aga Khani Shia and he has sufficient means to look after the welfare of the minors so also to grow up the minors in better atmosphere as per his own sect. From the record it appears that the minors used to go to school prior to handing over the temporary custody to the respondent No,
1. Thereafter, there is no evidence available on record whether minors are going to school. It has also come on record that minors are not going to Jamat Khana for their spiritual and religious education. The record reveals that respondent No,1 is residing with her three brothers namely Iqbal Ahmad Siddiqui, Kaleem Ahmad Siddiqui and Azeem Ahmad Siddiqui, who are her real bothers. It is an admitted fact that Iqbal Ahmad Siddiqui is a convicted person and was in Dubai Jail. The record also shows that the family atmosphere of the petitioner is too better for future growth of the minors as the mother of the petitioner is retired principle of Ibrahim Ali Bhai .School, his elder brother is running his own school namely Ameen academy and his second brother is getting education in Australia. From the record it also appears that the petitioner has sufficient source of income to maintain the minors in better way. As far as love and affection is concerned the father and mother have equal love with the children moreso even minors need love affection, better education mental and physical health and civil and social atmosphere. It is well-settled principle of law that the children be grown up according to the sect/religion of father. From the record it appears that the minors are not going to Jamat Khana which is a great injustice with the minors as minors are ultimately legal heirs of the petitioner. The minors have to adopt the sect of father, if they are not attending the spiritual classes at the Jamat Khana in future they will not be in a position to mix up with the Aga Khani community that would adversely affect the future career of the minors.
10. From the above discussions and reasons it appears that both the Courts below have not considered the facts and circumstances of the G & W case and have misread the evidence available on record and have not properly appreciated the evidence. As such the judgments and decrees dated 2-4-2007 and 27-10-2007, passed by learned IInd Civil and Family Judge, Karachi
(East) and learned 1st Additional District Judge, Karachi (East) respectively are not sustainable hence are set aside and petition is allowed as prayed. The petitioner who is the real father is appointed as guardian of the minors namely Ali Muhammad and Hyder Ali till the age of majority as welfare of the minors lies with him. The custody of the minors has already been restored to the petitioner on 13-2-2008 by a short order. Since the respondent No,1 is the real mother of minors and has right to see and meet with her minors, therefore, she is allowed to meet with the minors on every Saturday from 10-00 a.m. To 2-00 p.m. At the Court room of the trial Court i,e, IInd Civil and Family Judge, Karachi (East). The respondent No,1 is also allowed to meet with the minors in Eid-ul- Fiter and Eid-ul-Azha on first opening day of the Court from 10-00 a.m. To 2-00 p.m. At the trial Court room.
11. Above are the reasons of my short order dated 15-2-2008, by which I had allowed the petition.