' SH. AZMAT SAEED, J.---Through this judgment, it is proposed to adjudicate upon Writ Petitions 4195 filed by Ms.Iram Shahzad etc., and 4460 of 2010 filed by Dr. Muhammad Tahir as both of them have arisen from the order dated 26-10-2009 of the Guardian Judge III Lahore and judgment dated 19-2- 2010 of the Additional District Judge Lahore.
2. Brief facts necessary for the adjudication of the lis at hand are that Dr. Muhammad Tahir filed a petition in terms of section 25 of the Guardian and Wards Act seeking custody of his minor son namely Hamza Tahir. It appears from the record that Dr. Muhammad Tahir was married to Ms. Iram Shehezad on 29-6-2001 and from this wedlock minor Hamza Tahir was born on 27.3.2002.
Relationship between the spouses had degenerated into Ms.Iram Shehzad filing suit for dissolution of her marriage, which was eventually decreed on the basis of Khula vide judgment and decree dated 28-5-2005, whereafter, Ms. Iram Shehzad remarried Shehzad Rana on 3-12-2005 and out of this remarriage, there are further children.
3. Dr. Muhammad Tahir who is medical doctor by profession and is currently working in Daman in Saudi Arabia had taken the minor in June, 2007 from the custody of the mother first to Saudi Arabia and eventually to England.. The mother Ms. Iram Shehzad followed them to UK, initiated legal proceedings to recover and retrieve the custody of the minor and was successful, and the High Court of Justice Family Division UK vide its order dated 26-7-2007 directed handing over the custody of the minor to the mother Ms. Iram Shehzad, who brought the minor back to Pakistan, whereafter, on 6-3-2008 an application under section 25 of the Guardians and Wards Act was filed by Dr. Tahir against his former wife Ms. Iram Shehzad, her second husband and maternal grandmother of the minor. Said petition was resisted. Upon divergent pleadings of the parties issues were framed and evidence led by the parties. On behalf of Dr. Tahir his attorney appeared as AW1 whereas on behalf of respondent both mother and grandmother of the minor appeared as witnesses. Both sides produced documentary evidence which included material pertaining to previous litigation inter se the parties both in and outside Pakistan including the order of High Court of Justice Family Division UK referred to herein above.
4. The trial Court seized of the matter vide its order dated 26-10-2009 allowed the application under section 25 of the Guardians and Wards Act and directed the handing over of the custody of the minor to his father Dr. Tahir and the mother Ms. Iram Shehzad was allowed periodic visitation rights.
5. Being aggrieved, the mother Ms.Iram Shehzad and others who were respondents in the application challenged the aforesaid order dated 26-10-2009 in appeal which was dismissed vide impugned order dated 19-2-2010. However the visitation rights of the mother were increased and father of the minor was restrained from taking the minor away from the jurisdiction of the Guardian Judge Lahore except with the prior permission and against "heavy security" to be furnished to the satisfaction of the Court. It was also directed that passport of minor would remain with the Guardian Judge Lahore.
6. Being dissatisfied of the aforesaid order, Ms. Tram Shehzad, her present husband and her mother Mst. Hajia Khalid have filed Writ Petition No,4145 of 2010 while Dr. Tahir has also assailed the impugned judgment through Writ Petition 4460 of 2010 only to the extent that it imposes condition of furnishing of security and deposit of passport of the minor.
7. Mr. Farooq Amjad Mir, Advocate for the petitioners in W.P. 4145-2010 contends that impugned' judgments are illegal, result of miscarriage of justice, devoid of reasons and the findings arrived at have no nexus with the evidence on record. Learned counsel further contends that Dr. Muhammad Tahir is of unstable disposition who had married thrice and each of such marriages failed. Adds that Dr. Muhammad Tahir had married Ms. Iram Shehzad without disclosing his two previous marriages. He further contends that Dr. Muhammad Tahir does not reside within the jurisdiction of the Guardian Court, he had already decamped with the child by illegally taking him outside Pakistan depriving him of the care and affection of the mother which necessitated initiation of proceedings before the High Court of Justice Family Division UK to retrieve the child. Prior to the minor being taken to UK the minor was kept in Saudi Arabia alone while Dr.Tahir would be away for work the whole day and it would not be safe to hand over the minor in such a situation. Adds that application under section 25 of Guardians and Wards Act was not even filed by Dr.Tahir but through his attorney and further Dr.Tahir had never entered witness box though he was available in Lahore and during this entire period Dr.Tahir had not paid one penny towards maintenance of the minor.
8. Learned counsel has further contended that mere factum that impugned order have been challenged by Dr.Tahir with regard to restrictions imposed regarding taking away the minor outside jurisdiction of the Guardian Court makes it clear and obvious that once the minor is handed over to Dr.Tahir, the child would again be taken out of the country and the so-called visitation rights envisaged in the impugned judgments would become a fallacy. Further adds that it would be cruel to take the minor from the caring lap of mother/grandmother so as to be brought up by strangers in a foreign country. In support of his contentions, learned counsel relies on Bashir Ahmad v. Mst. Rehana Umar (1976 SCMR 28) Mst. Firdous Iqbal v. Shifaat Ali and others (2000 SCMR 838) Muhammad Shafique v. Additional District Judge (1991 MLD 774) Abdul Ghaffar v. Awwamun Nas and another (1988 CLC 670) Sh. Waseem Ahmad v. Mst. Wazir Begum and 2 others (2005 CLC 1755).
9. Learned counsel for Dr.Tahir has controverted the contentions being raised on behalf of opposite side by contending that mother (Ms.Iram Shehzad) has, remarried and also has children from her second marriage while Dr.Tahir has not remarried. Further contends that as per the evidence on record the minor does not reside with his mother who lives with her second husband and children and in fact is residing with his maternal grandmother, hence, it is contended that the minor is not being looked after properly. He further contends that Dr.Tahir is a man of means and being better placed can look after the welfare and interest of the minor and to ensure minor's necessary better education. It was also contended that the minor is male and over seven years age, and therefore under the law his custody belongs to the father (Dr.Tahir) especially as the mother has remarried, and therefore, has disentitled herself of her right to custody. In support of his contentions learned counsel relies on Surraya Bibi v. Abdul Rashid (1980 CLC 785) Mst. Sajida Parveen v. Addl. District Judge (1991 MLD 745) Mst. Shumaila Akhtar and 2 others v. Abdul Rauf and 2 others (2004 YLR 1913), Mst. Zubaida Khanum v. District Judge, Karachi South and 2 others (1988 CLC 560), Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and another (PLD 2003 SC 877) Fatima Bibi v. District and Sessions Judge 2004 YLR 652, Mrs. Sultana Begum v. Muhammad Shafi (PLD 1965 (W.P) Karachi 416) Mst. Ayisha Bibi v. Safdar Ali Shah and another (2005 CLC 894) Mst. Aisha v. Manzoor Hussain and others (PLD 1985 SC 436) Kousar Perveen alias Shameem v. Muhammad Fayyaz and 2 others (2009 CLC 566) Mst. Munawar Jan v. Master Muhammad Afasar Khan (PLD 1962 (W.P) Lahore 142)
Muhammad Bashir v. Ghulam Fatima (PLD 1953 Lahore 73) Mst. Chiragh Bibi v. Khadim Hussain (PLD 1967 Lahore 382) Muhammad Yasin v. Shabbir Ahmad (1985 CLC 2111) Mst. Zar Jan v. Mk.
Najmun Nisa and others (PLD 1969 Peshawar 118) Haji Din Muhammad through L.Rs v. Mst. Hajira Bibi and others (PLD 2002 Peshawar 21).
10. Heard. Record perused. Law in Pakistan governing the custody of the minors has crystallized through pronouncement of judgments including the judgments relied upon by both sides, and referred to hereinabove. In Syeda Chaudhri's case (PLD 2003 SC 377) it was held certainly the general rule that mother on contracting second marriage forfeits right of custody of the child is not absolute, and if interest of the child required, custody should be retained by mother. The Court may in the interest of the welfare of the minor by allowing mother to retain custody of the minor, but to determine the question of the interest of the minor weight must be given to the circumstance to be considered for holding whether welfare of the minor would be in living with the mother of the father.
It was further held that there cannot be an absolute rule and fixed criteria to determine the question of welfare in the same manner in each case.
11. In Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838, the Apex Court after examining and quoting the principles of Muhammadan Law by Mulla, Hedaya, Digest of Muhammadan Law by Baillies, Fatawa Alamgiri and commentary on Muhammadan Law by Syed Ameer Ali and Muhammadan Law by Tayabji held as under:-- ' As stated earlier, the main consideration which weighed with the learned Judge in Chambers of the High Court for making the order of delivery of custody of the minor to the father was only that after attaining the age of seven years, the right of 'Hizanat' of the male minor child under the Muslim Personal Law vested in the father as he is the natural guardian under section 25 of the Guardians and Wards Act (VIII of 1890). The welfare of the minor however remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody, after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the court only in the interest of welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would thus be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that respondent father who sought custody of the minor neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage.
' Even then she had not been negligent in the care of her minor son. She had entrusted that duty to her mother and father and minor is being properly educated till date in a local school. All along this entire period, the father never bothered even to go to meet the minor much less than providing maintenance to him,... ..................................................................................................... It was in these circumstances that the learned courts below had concurrently found as a fact that the welfare of the minor lay in leaving him to the custody of real mother through her parents rather than giving him to the respondent who is himself away from his household which had been left to the charge of the stepmother"
12. In each and every case relied upon by both the learned counsel for the parties, it has been consistently and without exception held that in determining the rival claims of the parties to the custody of minors, invariably it is the welfare of the minor which is of paramount importance and sole determining feature/factor. The age, gender and marital status of the parties are only factors which are to be taken into consideration for arriving at a conclusion as to how the interest and welfare of the minor can be best protected. Such factors are not to be considered in contradistinction to such welfare. Furthermore, no absolute rule or mathematical formula is available to determine the welfare of minor. It is equally a settled law for determining that right to custody mere age is not sufficient to return a finding. If that was so, the Judicature would not be required to agonizingly exercise its parental jurisdiction and leave the matter to a ministerial officer to merely examine the birth certificate of the minor.
13. We live in an imperfect world where marriages do break down and the minors are left to bear the brunt of the unforgiving acrimony of estranged spouses. The courts have to determine the welfare of the minor B on the basis of options that are available in the facts and circumstances of each and every case.
14. I have heard the learned counsel for the parties and have carefully perused the evidence, the judgments impugned and the case-law cited at the Bar. There are admitted and undisputed facts available on record. The minor is about 8/9 years of age. Parties are divorced. Mother has remarried. Father is doctor by profession and resides in Saudi Arabia and minor is living with his maternal grandmother in Lahore and currently studying in school whereas the mother is living few miles away with her husband and children from her second marriage and apparently periodically visits the minor. After his abduction, the minor was first taken to Saudi Arabia and subsequently to UK, where after the mother initiated proceedings which borne fruit and through the intervention of the High Court of Justice Family Division UK, minor was retrieved from the father and handed over to the mother for return to Pakistan. Orders of the said Court are on record. F.I.R. With reference to kidnapping of the minor was also registered and the accused nominated therein are facing trial. It is in the aforesaid backdrop that the father moved an application in terms of section 25 of the Guardians and Wards Act seeking custody of the minor. Careful perusal of the said application would reveal that it is a not a usual standard application under section 25 of the Act ibid by a father seeking custody of his child through parental jurisdiction of Guardian Court. It transpires that it is the case of father that he wishes to retrieve his son for taking him to Saudi Arabia outside jurisdiction of this Court, as is evident from Ground IV of his application wherein it is stated that he (father) is head of Radiology Department in a prestigious hospital (admittedly in Saudi Arabia) and is in a position to make adequate arrangement to look after the minor. In Ground VIII it has been reiterated that a foreign governess was employed to look after the minor during his stay in Saudi Arabia awl these arrangements can be reinstituted. The aforesaid pleadings of father leaves no manner of doubt that he had invoked the jurisdiction of the Guardian Court to claim the custody of his son to take him outside jurisdiction of the said court. Perusal of the impugned judgments of the Guardian Judge as well as the Judge of the first appellate court reveals that they deliberately chose to ignore this crucial aspect of the matter and evidently did not adjudicate upon the real matter in controversy. It has also been noticed with great interest that by way of a corollary the appellate court required that a 'heavy security' be furnished by the father to ensure that the minor will not be taken outside jurisdiction of the Guardian Court, which aspect has been promptly challenged by father through invocation of the Constitutional jurisdiction of this Court.
15. A careful review of the impugned appellate judgment had to be undertaken to discover reasons for deciding the matter in favour of father. Rather detailed exercise in this behalf had to be made.
Apparently what has weighed with the courts below is the fact that the minor was over 7 years age and the mother has remarried. Further what seems to have influenced the courts is that apparently father while working in Saudi Arabia earns lot of money.
16. The basis of the impugned judgments does not appear to be well founded. The ostensible wealth of a father can never be a ground entitling him to the custody of his minor child. It is the bounden duty of a Muslim father to maintain his children, whether, they are in his custody or of his spouse. Furthermore, in the instant case the respondent father has not paid a, penny of maintenance to the minor. No effort in this behalf appears to have been made. Furthermore, age of the minor more, particularly the male child is no doubt a relevant factor but not necessarily the sole and only consideration for determining custody of a minor, as has been held repeatedly by the Hon'ble Supreme Court of Pakistan including in the cases quoted and referred to above.
Furthermore, in the eventuality of divorce and a mother on remarrying, the child being brought up in the care of the mother through the maternal grandmother is also not unacceptable and may be the preferred option, as was held by the Hon'ble Supreme Court in Firdous lqbal's case (Supra). In the instant case, this is exactly the situation as it exists today, wherein the child is being well looked after and educated as has in fact been held by the appellate court in paragraph 12 of the impugned appellate judgment. It has also been noticed that the father deliberately did not enter the witness box to dispute the claim of the opposite side to allow himself to be cross-examined about how he proposed to look after the minor in Saudi Arabia. #TBS Muhammad Sultan v. Government of the Pakistan through #TBE i7. The options available, in the facts and circumstances of the case, are either to leave the child in the love and care of his mother through maternal grandmother with an atmosphere conducive to his well being or to dispatch the child to an unknown place outside the jurisdiction and supervision of the court in a foreign country to be brought up at best by a paid maid. Such a course of action would also amount to a fait accompli, leaving no room for a reversal of the situation, in case the welfare of the child is prejudiced that too outside the jurisdiction of the courts. In the circumstances, there is also no guarantee of any future contract with the mother as is apparent from the past conduct of the respondent father, who has once already arranged for the abduction of the minor and his illegal transportation outside Pakistan requiring intervention of the High Court of Justice, Family Division, U.K. No mother deserves to be put through the agony of permanently parting with her offspring or forced yet again to invoke the jurisdiction of a foreign court. In the circumstances, this Court finds itself unable to sustain the impugned judgments. Consequently, the order dated 26-10-2009 and judgment dated 19-2-2010 are hereby set aside, as a consequence whereof the application under section 25 of the Guardians and Wards Act filed by Dr.Muhammad Tahir stands dismissed.
However, the father of course is entitled to visitation rights. Consequently, he is allowed to meet the minor under the supervision of the Guardian Judge concerned on the first Saturday of each calendar month and will only be allowed to take the minor outside the court premises subject to furnishing of a surety bond for the safe return of the child to the satisfaction of the Guardian Judge concerned and by surrendering of his (father's passport) with the Court.
18. Writ Petition 4195-2010 filed by Ms.Iram Shehzad is accepted while the Writ Petition 4460 of 2010 filed by Dr. Muhammad Tahir stands disposed of in the above terms enumerated ibid.