' SHAHID ANWAR BAJWA, J.---The factual context of this constitution petition is that. The petitioner is a Pakistani born, citizen of France and is permanent resident of France. A marriage was solemnized between the petitioner and respondent No,1 at Karachi on 23-8-1996 and after requisite immigration formalities were completed, Rukhsati took place on 19-3-1999. After Rukhsati Respondent No,1 proceeded to France and during subsistence of wedlock the couple was blessed with three children namely Bushra Rehman, born on 13-11-1999, Munib Rehman, born on 22-12-2001 and Bisrna Rehman, born on 1-6-2003. Finally relationship between the parties soured. The wife and husband came to Pakistan on 24-7-2007. Respondent No,3 went to stay to the house of her sister and it is alleged , by the husband, refused to accompany the petitioner back to France. The petitioner went alone but the respondent No,1 filed a suit for dissolution of marriage and the marriage was eventually dissolved in the year, 2007.
2. The petitioner is a handicapped person and is in receipt of 897 Euros as allowance from the Government of France. The petitioner appeared in Court in person and he appears to be absolutely a normal person except according to him with some problem with his hand. It was stated by the petitioner in his petition that out of 897 Euros he pays 715 Euros as house rent and the balance amount of 184 Euros is used by him for living expenses. If the children are sent they will be entitled to receive allowance from Government of France who shall also provide free education to the children.
3. Application under section 25 of the Guardians and Wards Act, 1890 was filed by the petitioner praying therein for custody of all the-three children.
4. Written-statement was filed by the present respondent No,
1. Counter-allegations were levelled in the written-statement. But one of the things which was stated at the Bar was that a separate suit for maintenance of expenses of the children was filed by the respondent No,
1. Interim order for payment of maintenance at the rate of Rs,1500 per child was ordered by the Family Court. It was paid only for a few months. Thereafter the Family Court passed the final order granting maintenance at the rate of Rs,3000 per child per month and appeal of the present petitioner was dismissed. Order of the appellate Court has not been challenged in writ petition and therefore has attained finality. However, no payment is being made by the father of the children. This position was not controverted by Advocate for the petitioner. After recording evidence the trial Court vide order, dated 29-4-2009 came to the conclusion that the welfare of the minors is with the present petitioner and allowed the application. Appeal was filed and the appellate Court vide order, dated 27-8-2009 accepted the appeal, set aside order of Family Court and dismissed the application filed by the present petitioner. Hence this petition.
5. Learned counsel for the petitioner made the following submissions:--
(1) Respondent No,1 had though stated that she. Is employed by Johnson and Johnson, she has not produced any proof of employment nor did she produce any proof of income although she stated that she was earning Rs,25,000 per month.
(2) That the respondent No,1 is living in the house of her brother-in-law (her sister's husband). The respondent No, l's daughter is of growing age and husband of respondent No, l's sister is a stranger to her. It is therefore not in the interest of the minors that they be allowed to stay with the petitioner.
(3) That the Appellate Court has misread the evidence.
(4) That petitioner had been with shifting addresses and is therefore not in a stable situation.
6. Learned counsel for the respondent submitted that after coming to Pakistan the present Respondent No,1 was held in illegal custody by the present petitioner. Her sister filed application under section 491, Cr.P.C. And on this application an order was passed by the District Judge. The present respondent was recovered from custody of the petitioner.
7. Interim maintenance order and final maintenance order by the Court have not been complied with by the petitioner. The petitioner cares two hoots for his children, at least he has demonstrated it to be so by his conduct.
8. At the far end of the arguments of the learned counsel for the petitioner stated that children are not receiving any education. This was denied by learned counsel for the respondent No,
1. Although the learned counsel for the petitioner was not able to point out from anywhere in the petition where it had been stated that children are not going to school (in fact it had been stated in the petition that children are not going to a good school), in order to satisfy myself on this aspect, I directed respondent No,1 to produce the children in the Court on 20-11-2009 and also to produce her letter of employment. Consequently children were produced in the Court and letter of employment issued by one Katelist was also shown to me.
9. I have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited by the learned counsel to which I shall refer at due place in this judgment.
10. When the children came to the Court I asked them questions about their education and about their school. They were as confident in answering as children of their respective ages should be.
With confidence they repeated certain prayers in Arabic. The had happy smiling faces. I have no doubt that they are being well looked after.
' Trial Court framed the following issues:- "(1) Whether the minor entitled to het free education and other facilities up to the age of 18 years under the law of France Government.
(2) Whether the applicant is entitled to the custody of the minors?
(3) Where the welfare of minors lies?
(4) What should the order be?
11. On Issue No,1, the learned trial Court held, and rightly held, that in France the children will receive .Free education. On Issue No,2, the trial Court considered firstly that respondent No,1 was not staying with her parents, secondly she did not provide proof of her salary and thirdly for sometime she resided in New Karachi with one sister and thereafter in Model Colony with another sister. After reaching these three conclusions, then the trial Court came to the conclusion that education in France would be free and the children would be having nationality of France.
12. On the other hand, the Appellate Court held that no doubt education of France is better than education in this country but the Appellate Court observed that question before the Court was not that which country was better to living standard but that where did welfare of children lie. The Appellate Court also observed that respondent No,1 is a working woman and had not contracted second marriage. The Appellate Court also came to the conclusion that since father of the children was a handicapped person how could he look after welfare of the children.
13. First the case-law cited by the parties. First case relied upon by the learned counsel for the petitioner was Mst.Rubia Jilani v. Zahoor Akhtar Raja and 2 others 1999 SCM R 1834. In this case three children were born, all sons. They were studying at Lawrence College, Murree. Mother had filed application under section 25 of the Guardians and Wards Act, which was dismissed by the Guardian Judge. Appeal was rejected and High Court declined to interfere. The matter was taken to Supreme Court. It was argued by the Advocate for the mother that minors were of .Tender age and had been intentionally kept in a hostel far away from the mother. It was further argued that father being preoccupied had neglected the children denying them parental love and affection. It was argued by the father that children were receiving good education and were being looked after properly. The Supreme Court held that paramount requirement which must be kept in view for determining future arrangements regarding custody of minors is welfare of minors and Guardian Judge while dealing with such matters exercises parental jurisdiction. Therefore strict adherence is not pressed into service. Although the Supreme Court left the custody with the father but it was ordered that the children will stay with their mother for 1/2 period of their summer vacation and mother to have right to see her children once in a month in the school where the children were studying and residing.
14. In Mukhtar Ahmed Khan v. Mst. Aziza Begum, PLD 1975 Lahore 86, none of the parties had married after dissolution of marriage. There was no evidence that the minor had been in any case neglected. It was alleged that since father was a Railways employee therefore he would not be able to devote sufficient time to the minor. It was also noticed that father did not voluntarily pay maintenance for the children. Since one of the children was living with father and other was living with mother it was ordered that reasonable opportunity be given to children to meet with each other. It was therefore, directed that both the parties would arrange meeting for two children after every three months.
15. On the other hand, learned counsel for the respondent relied upon Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCM R 821. In this case father was living in an urban area while the mother, being an illiterate lady, was living in a village, Guardian Judge handed over custody of minor to father but Appellate Court reversed findings of the Guardian Judge and handed over the minor to the mother.
High Court in exercise of constitutional jurisdiction restored the order passed by the Guardian Judge for the reason that the father had better facilities. The Supreme Court held that poverty on the part of mother was no ground to disentitle her from custody of minor. It was held that it would be harsh to hand over the custody of the minor to the father leaving them at the mercy of step- mother in presence of his real mother who was properly maintaining the child. In that case father had remarried. This case is therefore distinguishable.
16. In Mehmood Akhtar v. District Judge, Attock and 2 others, 2004 SCM R 1839, factual background was that a daughter was born. Thereafter marriage was dissolved. In the suit for dissolution of marriage the mother forgave her dower amount etc., and it was agreed that the daughter shall stay with the mother and father shall be liable to pay maintenance allowance. However, if the mother remarried she would be liable to return, the girl child to her father. The father failed in payment of maintenance and a suit for recovery of maintenance was filed. The suit was decreed and pending execution of decree application under section 25 of the Guardians and Wards Act, 1890 was filed by the father. This application was dismissed by the Family Court. The Appellate Court reversed judgment and the High Court restored order of the Family Court. The Supreme Court held as under:- "(4) The right of custody of minor is not an absolute right rather it is always subject to the welfare of minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt the general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of the question of custody."
17. In the present case, the petitioner/father admitted that he was in receipt of handicap allowance.
This handicap allowance is not sufficient for the children. He also stated that if he remains with him they shall also receive sufficient allowance from Government of France but no such payment will be made by the French Government if children remain with the mother. He admitted that he had not paid any maintenance for the children and that has been so in spite of order by a Court. In cross-examination father stated that he did not know what was school fee, van expenses of children etc., and he did not know as what was fee of the Qari. He also admitted that he had not brought anything for children from France on his previous two visits. He also admitted that he has not made any application praying to the Court that he be allowed to meet with his children. The mother when she stood in the witness box stated that her salary is Rs,25,000 and she was working in a company called Katelist. She admitted that all the three children were born in France and hold French nationality. She admitted that if the children remain in France they will get better education but she stated that since father is a handicapped person he cannot look after the children properly and that the French Government cannot give custody to the handicapped person. She admitted that facility of children allowance by Government of France had been suspended because the children are in Pakistan. She also admitted that French society is a .Better society. She stated that she is ready to go to France.
18. When confronted with the fact that children will go France how will the mother able to see them, the learned counsel stated that petitioner undertakes that the children will be sent to Pakistan once every year. However, when confronted with the fact that the petitioner himself stated that expenditure of the visit would be Euros 4000 and according to petitioner's own statement out of 897 Euros he pays 715 Euro per month as house rent and spends 150 Euro per month for his food leaving with him a balance of about 34 Euros per month, however can he finance 4000 Euro per year. Learned counsel quickly replied that the petitioner has money in his bank amount. To which learned counsel for the respondent equally quickly retorted that in the maintenance suit the father had stated that he has no funds and no resources.
19. Another aspect that has to be considered by this Court is that the mother if she wants to go to France may or may not be able to get visa and may not be able to afford expenses. Sending children with father will deprive the mother of meeting her own flesh and blood. No doubt father stated that he will send children to Pakistan every year, I have serious doubt as to how Court in Pakistan will be able to enforce such an undertaking by the father when he is not within jurisdiction of the Court and secondly the father has himself not complied with one of the order of the Court below for payment of maintenance every month. The amount was only 3000 per month per child i.e, Rs,9,000 per month. Father did not respect the order of the Court and which is less than 75 Euro per month he stated in his cross-examination that he would not pay the amount in Pakistan. How can he be expected, at least reasonably expected, to honour such undertaking. This is not the only reason for dismissal of this writ petition.
20. There is no doubt that, French schools may be better schools, French cheese may be better cheese and French bread may be better bread but giving the socio-cultural milieu of an Islamic society of Pakistan where children will have better upbringing as Muslims. Whether they would have equally conducive social environment in France is a question which would not normally elicit more than one answers,
21. Children have stayed with their mother. As stated above it appears that they are being well looked after and are receiving good education. Mother has been looking after them and it is the father who has neglected them for the last three years; not been sending a single farthing for their maintenance.
22. The statement by the learned counsel that she is living with her sister and her brother-in-law is stranger to the girl does need some attention. However, the learned counsel for the respondent No,1 submitted that the house where 'she is living has two separate portions and she is living in a separate portion and secondly her real brothers regularly visits and are there to provide the necessary protection. Therefore in my opinion the welfare of the children is that they be allowed to live with their mother in Pakistan. I therefore, uphold the order passed by the Appellate Court.
23. However, I cannot shut the door for the father. He shall have right of talking to the children on telephone from France once every month. Also when he visits Pakistan he shall have a right to have meeting with his children once every Sunday of his stay in Pakistan from 11-00 a.m. To 7-00 p.m.
And in such eventuality he shall be liable for picking and dropping them. However he can exercise such rights only and only if he leaves passports of all three children with their mother. However, his rights are contingent upon his paying maintenance charges as ordered by the Court below. Once children or child in question, attain the age of 16 years, if the children or the child want to go to France to visit his/her father the petitioner shall have right to take the child or children, as the case may be, to France for one month during summer vacations.
' This writ petition is disposed of in the above terms.