S. ALI HASSAN RIZVI, J. --- Instant writ petition is filed against the judgment dated 23.7.2008 of the learned Trial Court and of Additional District Judge passed in appeal on 22.12.2008.
2. Brief facts are; that Mst. Shamim Bibi filed an , application for custody of minors against the petitioner as both were residing separately: Allegedly, the petitioner had snatched two minor daughters from respondent No. 1 (mother) and expelled her from the house after giving beatings. The learned Judge, Family Court framed the issues arising out of pleadings of the parties and after recording evidence observed that the welfare of the minor lay with the respondent (mother) and she was entitled to the custody of the minors. The petitioner preferred ,an appeal: which was also dismissed. Hence, this petition.
3. Learned counsel for the petitioner argued that the minors are grown up being of the age of aboUt 11/12 years; they are happy with the father and the learned Trial Court examined them and on every occasion, they preferred to live Writ Petition No. 1750/2009 with their father. The learned lower Courts have not taken into consideration the intelligent preference of the minors and evidence on record, therefore, the impugned orders of the Courts below are liable to be set aside.
Reliance is placed on Ms.t. Zar Bibi v. Haji Malik Abdul Ghaffar and others Mst. Zar Bibi v. Haji Malik Abdul Ghaffar and others (1998 M LD 1697). .
4. Heard. Undoubtedly, the petitioner has entered into second marriage and the female minors are residing with step-mother while respondent No. 1 is real mother who allegedly has been expelled from the house after entering into second marriage by the husband (petitioner). The age of both the minors is below ten. The minors were produced in Court by the father and they at the time of, appearing in Court for interview were continuously weeping. They could not satisfactorily reply to the answer on asking whether they want to live with their mother or father. Both the minors were appearing under the superintendence of the petitiondr/father. Learned Trial Court had also observed depression on their faces. The learned Court having regard to the problem of the female children was of the view that minors could not be left at the mercy of their step-mother. In the situation, when the real mother is alive and the father/petitioner has entered into second marriage the female minors who are below ten, cannot be said to form an intelligence preference. The minors are residing with the step-mother.
The lower Courts both have rightly decided the issue framed that the paramount consideration ought to be for securing the welfare and happiness of the minors to live with the mother who in case of female is better to look after as compared to father who has entered into second marriage.
There may be no substitute of the real mother for her female children. There is no illegality in the impugned order calling for interference in exercise of Constitutional jurisdiction of this Court.
Dismissed in limine. .