KH. FAROOQ SAEED, J. --- Through this writ petition the order of the Addl. District Judge dated 14-07- 2008 is challenged inter alia on the basis of following arguments:---
(i) That the respondent mother has married again to a stranger who is in prohibitory decree;
(ii) That under Islamic Laws there is a very clear instruction that the girls should not be allowed to stay with their mother in case of separation between the husband and wife if she marries to another person who is in prohibitory degree;
(iii) That the petitioner herself had surrendered the custody through a written agreement at the time of separation;
(iv) That the orders of the two forums below are at variance.
2. Supporting above four arguments the petitioner's counsel said that Islamic Law is a divine law and for all practical purposes the directions given by Allah through His Prophet should be considered as superior. In addition to referring Sections 351, 352 and 354 from the famous book of DF Mulla, he remarks that the girls are not permitted to live with their mother if she is married to a person other than their father. He also referred "Surah Nisa" Ayat No. 51. He however, could not give any satisfactory reply on the question of maintainability of the writ petition as apparently there is no illegality or irregularity in the orders of the two officers below. His reply remained that since the direction to live with mother inter alia includes living with step-father as well who is in a prohibitory decree, it is illegally.
3. The respondent on his turn firstly challenged the vary application of Section 354 by stating that the opinion of Mr. DF Mulla at best can be a research work and does not have any binding effect in any form whatsoever. It is neither a code nor even otherwise have any sanctity with regard to its application on the family matters. There are so many other research works which are of much weight and importance and can be referred in such matters more safely. He referred the books like "Fatawa Alamgiree" and "Ainul Hidaya" and the other Sharia books authored by Syed Amir All etc. The rule referred by the petitioner has rather been commented to be over simplification and inapplicable in family matters through 2000 SCM R 838 Re; "Mst. FIRDOUS IQBAL v. SHIFAAT ALI and others."
4. Coming to the main arguments the respondent counsel first of all said that the factors which are necessary for determination of the custody are many fold in number. He however, commented that all such factors ultimately amalgamate to the one final necessary requirement which is "welfare of the child". The other important factors which are ancillary to the determination of welfare include the choice of the minor. Regarding argument of the prohibitory degree of step-father he commented that this again is not an absolute rule.
5. This Court in principle agree with the respondent side that the status of the father or second marriage of the mother may in some cases be good reason for depriving the mother from the custody of her children but this obviously cannot be considered as un absolute rule. In each case the circumstances can vary like in the present case there is very strong and almost verifiable evidence that the step-mother has maltreated the daughters.
6. This has also been stated before the subordinate forums that minors do not want to live with the father and would prefer to take some poison and die. Further the choice of the minor is also an equally important factor for determination of the question. In fact it is the 'welfare of the child' which is to be determined through other facts. Some times the consent may not prove to be in their welfare because the minors for the reasons of the age factor may have a disadvantage. Similarly living with a man in a prohibitory decree, in some of the cases can prove to be as not sale but in most of the cases have proved to be better than living with the step-mother. In any case these are not hard and fast parameters.
7. Coming to the present case the prime consideration being 'welfare' it stands proved from record that:---
(i) The step-mother has maltreated the minor;
(ii) The minors are not willing to live with the stepmother or their real father;
(iii) Mother's right of "Hizanat" is intact;
(iv) That there is no apparent misreading or non-reading of evidence.
8. In fact this Court in a chain of judgments have held that:--- "As ultimate Court in the give due weight and consideration to the opinion of the Courts below and in particular to the opinion of the Court of first instance which had the advantage of hearing the parties witnesses, and watching their demanour. Normally, the Supreme Court does not interfere with the findings of facts reached by the primary Courts or a High Court when it is satisfied that the findings of the Court below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible."
9. The respondent in favour of his argument has referred a long list of judgments separately but, however, since not a single copy of the same has been provided the same are not being mentioned. For brevity however, 2004 SCM R 990 re: "Mst. SHAHISTA NAZ v. MUHAMMAD NAEEM AHMED and another, 2003 CLC 1310 re: "Dr. RUQIA SHAUKAT v. ADDITIONAL DISTRICT AND SESSIONS JUDGE and another" and PLD 2002 SC 267 re: "Mst. HAMEED MAI v. IRSHAD HUSSAIN"are mentioned.
10. The ultimate finding in all the three judgments is that welfare of the child is prime for custody and relying upon the same on the basis of facts discussed above it is held that the welfare has rightly been determined by the Addl. District Judge.