This appeal has been directed against the decision of learned Civil Judge Sehnsa, empowered as Judge Family Court dated 20.10.2005, whereby an application for custody of minor Respondent No, 2 was dismissed.
Brief facts forming the background of instant appeal are that the appellant filed an application for custody of minor Respondent No, 2 before Judge Family Court Sehnsa on 9.4.2005. It was averred that the appellant is serving as Assistant Director Statistics in grade 17 at Muzaffarabad. The Respondent No, 1 was married to the appellant in year 1997 and during the wedlock Farhan Taarif minor Respondent No, 2 was born on 13.2.1998 he has crossed the age of seven years. He further contended that on account of strained relations, Respondent No, 1 obtained divorce from Judge Family Court on 20.2.2001. The appellant filed an application for custody of the minor before Judge Family Court Sehnsa which was dismissed on the ground that the minor is two and half years old.
The appellant challenged the aforesaid decision but his appeal was also dismissed by this Court.
According to the appellant, the minor respondent has crossed the age of seven years; therefore, the appellant is entitled to his custody as father. The appellant further submitted that he is regularly providing for him maintenance and is settled in Muzaffarabad where renowned education schools are available as compared to village Bhrand. The appellant also averred that after obtaining divorce, Respondent No, 1 has developed-hatred in. the mind of minor which has ruined the health and mental attitude of the minor; therefore, the minor may be handed over to him.
The Respondent No, 1 filed her objections and submitted that the appellant has permanently left the village Bhrand and is settled at Muzaffarabad. The respondent further contended that the minor is living with his mother for the last seven years and if he is separated from his mother, his future will be ruined. The respondent also averred that the appellant has solemnized another marriage whereas the respondent (mother) has not remarried. The appellant never tried to see the minor from the day of his birth who remained sick for two years and operated upon thrice but the appellant never bother to look after him. The respondent submitted that the petition for custody may be dismissed.
In the light of pleadings of the parties, the learned Judge Family Court framed the following issues:- -
1. Whether the appellant is entitled to the custody of Farhan Taarif, if yes, then how? OPA
2. Whether the appellant has got cause of action? OPA
3. Relief.
In support of his application the appellant entered into the witness-box and also produced Muhammad Rafique and Mehrban as his witnesses, whereas the respondent-mother got her statement recorded and produced Muhammad Saeed and Abdur Razzaq as her witnesses.
The learned Judge Family Court after hearing arguments dismissed the application of the appellant vide its decision dated 20.10.2005. It is the aforesaid decision which has been assailed through the present appeal.
Liaquat Hussain Mughal, Advocate, the learned Counsel for the appellant, argued with vehemence that the learned Judge Family Court fell in grave error while dismissing the application of the appellant because the minor has crossed the age of seven years; therefore, he is entitled to the custody of his son. The learned Counsel further contended that the appellant is an educated person who is serving as an officer in the Government service therefore, he can bring up and look after the minor in a proper manner as compared to the mother who is an illiterate person and residing in a village. The learned Counsel also submitted that the Court below has not recorded its findings upon the issues. In this regard, he referred to me Page 4 of the impugned decision and stressed that the impugned decision may be reversed. The learned Counsel pointed out that the appellant is regularly providing maintenance allowance for his son which proves that he is interested for his custody. The learned counsel further maintained that the ground of remarriage of the appellant cannot be treated as an obstacle for the custody of his minor son. In support of his arguments, the learned Counsel cited the following authorities:--
1. PLD 1988 Karachi 252.
2. 1995 SCR 136.
3. 1996 SCR 265.
4. 2001 SCR 580.
5. 2004 SCR 561.
Ch. Muhammad Ilyas, Advocate, the learned Counsel for the respondents, submitted that previously the appellant had presented an application for custody of the minor before Judge Family Court Sehnsa which was dismissed and an appeal filed before this Court was also dismissed. The learned Counsel pointed out that the appellant has contracted a second marriage out of the tribe whereas Respondent No, 1 has not solemnized second marriage for the sake of welfare of the minor and she is busy in bringing up her child. The learned Counsel further contended that the minor respondent is studying in a private school in a befitting manner. The learned Counsel stressed upon the point that the appellant never visited the minor; therefore, he is stranger for him. The learned Counsel finally submitted that the basic point for disposal of the application for custody is the welfare of the minor and not the age; therefore, on the sole argument that the minor has crossed the age of seven years is not a valid ground for handing over the custody of the minor to the appellant. According to the learned Counsel, the minor remained with his mother from the first day of his birth till now; therefore, the welfare of the minor lies with the mother and not with the father or the step-mother. The learned Counsel referred to me the following case law in support of his contentions :--
1. 1996 CLC 1.
2. 2003 SCR 318.
3. 2004 SCR 561.
The contentions of the learned Counsel have been carefully perused alongwith the case law cited.
It is admitted on the record that the minor respondent has crossed the age of seven years. It is also an admitted fact that the appellant has left the village Bhrand and he is settled at Muzaffarabad with his second wife and from the second wedlock he has been blessed with a son whereas the respondent-mother has not contracted the second marriage. It has further been proved on the record that the appellant-father never visited the minor and never presented an application before the Court for the purpose.
Now the question arises as to whether the welfare of the minor lies with the father after attaining the age of seven years or with the mother, with whom the minor is living from the first day of his birth till now, who is also bringing up him in a proper and befitting manner and she has got him admitted in a private school, the best available in the vicinity, whereas the father is settled in Muzaffarabad and after the eartequake Muzaffarabad has been ruined. The proper schools and teaching facilities are not available over there.
A careful perusal of the case-law cited by the learned Counsel for the parties reveals that the consensus of the Apex Court is that the Welfare of the minor is paramount consideration and not the age. The learned Counsel for both the parties have relied upon Mst. Bashir Bibi's case (2004 SCR 561) whereby after discussing ratio decendi in Shafiqueur-Rehman's case (1995 SCR 136), Muhammad Ramzan's case (1996 SCR 265), Mst. Azhra Bibi's case (2001 SCR 581) and Mst. Irshad Bibi's case (2003 SCR 318), the Supreme Court of AJ&K has opined that while appointing or declaring the Guardian of a minor or handing over the custody of the minor under Sections 17 and 25 of the Guardians and Wards Act, the paramount consideration would be the welfare of the minor. The aforesaid principle was enunciated on the basis of law laid down in Mst. Irshad Begum's case (2003 SCR 318), which reads as under:-- "9. According to the aforesaid provisions of law the Personal Law to which the minor is subjected should be the guide for the appointment of a guardian which is further subject to two limitations:
(i) the provision of this section (ii) and welfare of the minor. If consideration of the welfare of the minor or the conclusions arrived at as a consequence of the guidance in the section itself makes it impossible to follow the guideline of the Personal Law then the same may be abandoned and steps most conducive to the welfare of the minor and consistent with the provisions of the section have to be taken, if the Personal Law of the minor is not inconsistent with either of the provisions of this section or the welfare of the minor then it should be followed.
10. While appreciating the welfare it has to be seen that the welfare includes his moral, spiritual and material well being. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor if he or she is intelligent enough to make it."
In the light of the above stated case-law, the sole ground for the custody of the minor is not the age of minor rather his welfare.
It is pertinent to note here that the minor is living with his mother from the first day of birth till now.
The minor has also made his preference to live with his mother and he has refused to even recognize his father, as observed by the Family Court. In case, his custody is handed over to his father, he has to live with the step-mother who is also having her own son. It is well known fact that it is better to have a dried and parched food in the lap of real mother, which is thousands time better than an expensive banquet or a delicious morsel in the company of a step-mother.
It has also been amply proved on the record that mother-respondent is bringing up and looking after the minor-respondent in a befitting and proper manner. The minor is studying in a private school. He is very well settled with his mother. Therefore, it will be in the interest of minor that the guideline of the Personal Law be abandoned and the steps most conducive to the welfare of the minor be taken and he may be allowed to live with his mother. On this account, the impugned decision does not smack of any glaring defect, material irregularity or patent illegality; thus, does not warrant any interference by this Court.
For what has been stated above, finding no force in this appeal, it is hereby dismissed.