1. ' Dr. RANA MUHAMMAD SHAMIM, J.---Through this constitutional petition, the petitioners challenged the impugned judgment, dated 30-11-2007 passed by the learned IIIrd Additional District and Sessions Judge, Karachi South while setting aside the order of the learned trial Court, directed the petitioner No.1 to hand over the custody of children to the Respondent No.l. Hence this petition.
2. ' It is contended by the learned counsel for the petitioners that the learned Appellate Court erred in law to pass the impugned judgment without having jurisdiction, that the learned Appellate Court did not consider the wishes of the children and even to ask the children where they want to live, that the learned Appellate Judge did not bother to consider the material available before him and passed the impugned judgment without adjudging the paramount welfare of the minors, that the learned trial Court has ignored the factum of remarrying of the Respondent and his conduct of divorcing of second wife being of imbalance mind. He relied upon the case of Muhammad Aslam v.
3. Additional District Judge (2004 CLC 160), Mst. Firdous Iqbal v. Shifaat Ali and others (2000 SCM R 838), Mehtab Mirza v. Mst. Shazia Mansoor (2005 M LD 256), Sardar Hussain and others v. Mst.
4. Parveen Umer (PLD 2004 SC 357) and a case of Muhammad Naseer Humayoun v. Mst. Syada Ummatal Khabir (1987 SCM R 174).
5. ' On the other hand, learned counsel for the respondent No.1 contended that the petitioner No.1 is simple matriculate lady and household wife and there are no sources of income to spend for welfare of the children. He further contended that children Zain and Fazal Shahzad are studying in the Boarding School where they have already completed half session with advance fee being paid by the respondent No.
1. Learned counsel for the respondent No.1 further contended that the petitioner No.1 after birth of two sons, obtained a decree for dissolution of marriage from Family Court, Lahore against the respondent No.1, this fact would be enough to prove that how was she willing and careful about the welfare of the children and remarried with the respondent No.1 and again had been divorced by the respondent No.1. He further submits that the petitioner is planning to shift to Lahore with the children in order to frustrate the proceedings before the Guardian and Wards Court. He submits that the respondent remarried and divorced his second wife for the sake of his children. Finally, he submits that the law of Hizanat entitles the respondent for the custody of children and as such supports to impugned order. He submits that merely wishes and opinions of minors is not enough but main consideration is the paramount welfare of the minors, wishes of the minors, which lies with their father not with mother. He placed reliance on 1996 CLC 1603 (Mst.. Rubia Jilani v. Raja Zahoor Akhtar), PLD 1981 AJK 4 (Mst. Mumtaz Begum v. Karamat Hussain 2003 CLC 1310 (Dr. Ruqia Shaukat v. Additional District and Sessions Judge and NLR 1995 CLJ 167.
6. I have heard both the learned counsel for the parties and gone through the entire record available before me. In my humble view, the mother's lap is the first place of education where the infant learns and knows her/his mother and even otherwise the affiliation of child with mother is more than that of father. I have enquired from the children two of them grownup and the youngest who are not willing to leave the mother at any cost and emotionaily attached with her due to love and care they are getting from mother.
7. The case of Firdous Iqbal (supra), the Hon'ble apex Court has held that the right of father to claim the custody of minor son is not absolute right. The welfare of the minor is always a paramount considerations.
8. ' In the case of Muhammad Aslam (supra), it is held that the minors were properly brought up by the mother and there is no substitute of love and affection of real mother and she cannot be deprived from their custody if she remarried.
9. The case-law referred by the learned counsel for the respondent is distinguishable as every case has to be decided on its merits as wishes of the children can't altogether be ignored.
10. ' In view of the above, the judgment of the learned Appellate Court is set aside and the petition is allowed. The custody of the minors will remain with the petitioner; however, the father will be allowed to meet with his children as per directions of the learned trial Court. The petitioner is also directed not to leave the jurisdiction of this Court till the disposal of the suit pending before the learned Guardian Judge at Karachi.