'MUHAMMAD AMJAD IQBAL QURESHI, J.---Through instant appeal, the appellant calls in question the legality of order dated 26-5-2009, passed by the learned Single Judge in Chamber, whereby Writ Petition No,831/2009 filed by the respondent No, 1 was accepted and custody of minors was entrusted to their mother.
2. Briefly, the facts giving rise to the filing of instant I.C.A. Are that the marriage between appellant and respondent was solemnized on 7-6-2003 and out of said wedlock, three children namely Liza, Sheron and Saira were born. That four months prior to the institution of instant I.C.A. The respondent No,1 left the house of the appellant by leaving behind the children in the house of appellant and started residing in her parental house. Later on, she filed a Habeas petition before learned Sessions Judge, Islamabad. The learned Sessions Judge, Islamabad vide his order dated 25-4-2009 disposed of the said petition with the following observation:-- "Therefore, there is no justification to change their custody while dealing with an application under section 491, Cr. P.C . The petitioner, if so advised, may approach the Guardian Judge for getting custody of the minors."
3. Feeling aggrieved by the said orders, the respondent No,1 invoked the constitutional jurisdiction of this Court by filing Writ Petition No,831/2009, which was disposed of by learned Single Judge in Chamber vide order dated 26-5-2007. Relevant portion of which is reproduced hereunder:-- "For what has been discussed above, I have come to the conclusion that it would be in the interest and welfare of the minor if their temporary custody is given to the petitioner, hence while setting aside the order of learned Sessions Judge, Islamabad dated 25-4-2009, this constitutional petition is allowed and the custody of three minors mentioned supra is handed over to the petitioner. The respondent No,1 may avail his remedy before Guardian Judge concerned, if so advised."
4. Learned counsel for the appellant has contended that the impugned order is against law and facts of the case. The learned Single Judge passed the impugned order in a hasty manner on the basis of non-reading and misreading of evidence available on the record, therefore, the impugned order is liable to be set aside. He argued that the welfare of the minors is not with the respondent No,1, as she is living in her brother-in-law's house, which is measuring 2 1/2 Marla, and her sister already has a large family. The appellant is an employee of American Embassy at Islamabad having his own house measuring 6 Marlas and his monthly income is about 14,000, therefore, the can provide better status and facilities to his children than the respondent No,
1. That the impugned order has been passed without giving opportunity of audience to the appellant. That the learned Single Judge has ignored the fact that due to handing over of children to respondent No,1, the difference between the spouses would become vast and not reduced.
5. We have heard learned counsel for appellant at length and perused the record.
6. The minor children need the company and protection of their mother more in their early age, then the grown up children, because if they are deprived of company of their mothers, this factor creates a deprivation in their lives, which can never be restored back. This goes without saying that no one in the world can take care of minor children more than their real mothers. This is also hard fact that the children, who loose the company of their mothers in their early age, for one reason or the other, feel the sense of deprivation, which goes life long with them and at times they become psycho cases. The mother plays role of first institution in the life of her minor children, and one feels the warmth of lap of mother for the whole life even if grown old.
7. The contention of learned counsel for the appellant regarding the fact that the respondent deserted the house of appellant after leaving behind a letter to the effect that she would not claim the custody of the minors, cannot be decided unless the matter is adjudicated upon by a Guardian Judge, as factual controversies are not the subject matter of the High Courts to decide in writ jurisdiction.
8. The learned Judge in Chamber, therefore, rightly ordered the appellant to seek his remedy from the Guardian Judge, instead of invoking constitutional jurisdiction of this Court. The decision of the learned Judge-in-Chamber regarding handing over the custody of the minors by way of setting aside the order of the learned Sessions Judge, Islamabad, also suffers from no infirmity or illegality.
9. In view of above findings, the instant I.C.A. Stands dismissed, being devoid of any force. However, the appellant if so advised may approach the learned Guardian Judge for the redressal of his grievance and in case any such petition is made, the Guardian Judge shall decide the same with an independent mind without being influenced by any observation made in this I.C.A.