Brief facts of this case are that the petitioner and respondent after marriage were living together while the respondent after leaving the house of the petitioner filed petition for custody of the three minor daughters namely Naiha, Aneeqa and Huma. An application under Section 12 was also filed alongwith the said petition. The Guardian Judge decided the said petition under Section 12 on 16.4.2007 and granted the custody of one of the three minors to the respondent. Appeal filed before the Addl. District 'Judge failed in the manner that he has confirmed the said order vide his order dated 26.3.2008
2. In fact this Court normally does not entertain the writ petition against interlocutory order.
However, through order transfer of custody though interim is likely to take place which is in relation to protection of the person during the said intervening period. Besides, making a child a rolling stone by various interim order also is not appropriate for his personality and well being, hence, the respondent objection to this extent is ignored for the time being. However, other objection that there is nothing illegal in the order of two forums below definitely needs consideration and dilation.
The same, however, shall be taken up in the latter part of this order.
3. The basic objection of the petitioner against the order is that the finding is totally on the argument that the minor is of tender age and the mother has the right of "Hazanat" which in his opinion has not been approved by the higher Courts in the chain of judgments. He has referred (PLD 1967 Karachi 645) re: 'Muhammad Sadiq Butt Vs. Mst. Khalida Parveen" (1988 C.L.C. 1741) re: "Zulfiquar Ahmad Vs. Mst. Qaisra Sattar" and (1980 C.L.0 909) re; Mirza Muhammad Yusuf Vs. Mst.
Razia Sultana".
4. His second line of argument was that neither any urgency has been 'established in this case nor queston of welfare has been addressed. The Courts have never approved the custody of a child where it is in ignorance of the prime question i,e, welfare of the child. In favour of his arguments he has placed reliance upon (P.L.D 1967 Karachi 645) re: 'Muhammad Sadiq Butt Vs. Mst. Khalida Parveen". The next argument was that the minor should not be made shuttle cock as the same obviously is not welfare, rather damaging and the reliance is on (1988 S.C.M.R 1234) Re: "Khushi Muhammad Vs. Mst. Arshad Bibi and others" and (1980 C.L.C. 851) re: "Allah Rakha Vs. Hamida Bibi".
5. Regarding other controversies he pointed out that all the three sisters are of an age in which they are united with the love bond. They share one room and also other amenities of life. They are going to one school and are also studying under the instructions of one tutor and one moulvi. They are having good care with their father and the Paternal grand mother. Besides the petitioner is willing to accept back, the respondent to join him for performing her matrimonial responsibilities. He, therefore, urged that the orders of the two forums below may be set aside.
6. The respondent as already mentioned started with his preliminary objection with regard to maintainability. He raised another objection by challenging the power of attorney of the petitioner which in his opinion does not cover filing of a writ petition before this Court, though, it does give the authority to file other cases in other Courts through a specific mentioning in Clause-7. This objection also is of no avail as the other clauses which are general in nature give authority to the attorney to file suits in other forums including this Court. It is general power of attorney and the same gives a more wide authority.
7. The other arguments were that since there is no illegality or jurisdictional error in the orders of subordinate Courts, writ jurisdiction should not be invoked. Moreover, the right of "Hazanat" is such a prime right of the mother that the same supercedes all other connecting matters. In tender age, the protection which a mother can provide is unmatchable. Nothing on earth can supercede her right which she thus can exercise being a natural and best caring guardian because of natural love and affection which she bears for her children. Relying upon (P.L.D 1999 Peshawar 59) re: "Nazar Gul Vs. Sessions Judge and others" which is D.B. judgment, the petitioner claimed that tender age is not a disqualification but rather advantageous to the mother for obtaining the custody.
8. It is true that the superior Courts have always directed to decide the matter of custody of child after due care and proper inquiry etc, but no where it has ever been held that any body especially a father who does not remain present within the country having his permanent abode at Dubai can have a preferential right over the mother. He further" argued that once it is decided that the interim custody shall remain with the mother it should not be changed unless there is very material change in the circumstances of the two parties.
9. The respondent counsel denied that she left the house of the petitioner at her option or voluntarily. Further that there is no delay in filing of the petition as claimed by the petitioner as during the intervening period she remained involved in getting the custody of the children through seniors of the family as well as through friends and relatives. However, on failure of the said seniors, she decided to invoke the jurisdiction of the Guardian Judge. It was also argued that the respondents working in Beauty Parlor is no bar in taking the custody. It is a lawful business and there is no prohibition against any body to work at such or similar places.
10. Furthermore, this fact alone that the respondent is not present in Pakistan and the children are living with their grand mother also gives force to the claim of the respondent. Reliance in this regard is placed on (P.L.J 2004 Lahore 1048) re: 'Mst. Khurshid Begum Vs. Additional District Judge, Rawalpindi and 2 others", (2000 Y.L.R 3046) 'Mst. Farah Wagar Vs. Dr. Wagar Ahmad Khan and another" and (P.L.D 2004 Lahore 395) re: 'Mrs. Khurshid Begum Vs. Additional District Judge, Rawalpindi and 2 others".
11. After hearing both the parties and perusal of the record as well as case law, I am convinced that ultimate finding of the two forums below with respect to the interim custody to the mother is un- exceptional. It is evident from the record that the respondent father is not present in Pakistan. He does not visit very often, hence, for all practical purposes the minors are not having paternal love and affection in any manner. It may be true that the respondents are living in systematic life in the house of their grand mother, but, obviously she cannot be a substitute to the mother and even father either. Since the maintenance of the children is the responsibility of their father, the minor can still have the same level of the education and the treatment even while remaining under the shelter of her mother.
12. Furthermore, depriving the mother from all her three children at the same time especially when she is entitled to the "Hazanat", will be unfair. Still further the minor is too young to be taken care of by an old lady, grand mother or by her elder sisters who also are not even in teen ages. The interim custody allowed, therefore, is confirmed and the writ petition is considered without any merit.
13. It may be mentioned here that the legislature by not providing a second appeal in such matters have given the impression of culmination of such issues at the stage of Addl. District Judge. The intention of the legislature should not be circumvented with by using the powers of a writ substitute of an appeal. While giving the order of interim custody, no illegality or even irregularity has been done by any of the two forums. The writ petition, therefore, is without merit, hence is dismissed.