' GHULAM MUSTAFA MENGAL, J.--- This Constitutional Petition under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973 has been filed by the petitioner Abdul Qadir, challenging the legality and validity of the judgment dated 31st February, 2010, passed by learned Additional District Judge-II, Quetta in Family Appeal No,28 of 2009, whereby he dismissed the appeal and maintained the judgment dated 31st August, 2009, passed by the learned Family Judge-II, Quetta in Guardian Application Na.29 of 2008, whereby the application for custody of the minors filed by the petitioner was dismissed.
2. The facts leading to rise to the present petition in brief are that the petitioner and respondent were married in the year 1999 according to the injunction of Islam. Out of wedlock three sons namely Suleman aged about 8 years, Sumeer aged about 7 years and Sohail aged about 4 years were born. Unfortunately, differences arose between the spouses, resultantly, the respondent along with minors left the house of petitioner and took shelter in the house of her father/brother and filed a suit for dissolution of marriage, maintenance allowance, recovery of dower and dowry articles.
The suit was ex parte decreed vide order dated 23rd August, 2007. Thereafter, the petitioner filed an application under sections 9/25 of the Guardians and Wards Act for custody of minors. After recording evidence and hearing the parties, the learned Family Judge-II, Quetta vide judgment dated 31st August, 2009 dismissed the application. The petitioner feeling aggrieved of the said judgment filed an appeal before the learned District Judge, Quetta, which was entrusted to the Court of Additional District Judge-II, Quetta, who after hearing the parties, dismissed the same vide judgment dated 8th February, 2010, hence the present writ petition.
3. Barrister Adnan Kasi, learned counsel for the petitioner contended that Courts below have failed to take into consideration that respondent/mother is jobless and has no monetary resources to maintain the minors better than the petitioner (father); that if the minors remained in the custody of respondent their future will be adversely affected; that the minors are not in good schools and are failing for the last two years. According to the petitioner, he is regularly providing maintenance allowance for the children. In support of his contention he has relied upon the cases of Ganj Bibi v.
Muhammad Younas (2011 CLC 1062) and Mehmood Akhtar v. District Judge Attack (2004 SCM R 1839).
4. Mr. Obaidullah Quresh, Advocate, learned counsel for the respondent has opposed the arguments of learned counsel for the petitioner. He further contended that the concurrent findings of the Courts below are not suffering from any misreading or jurisdictional defect, therefore, the same should not be interfered by this Court. In support of his contention he has relied upon the case of Mst. Baso v. Additional District Judge-III, Sahiwal (1987 CLC 1675).
5. We have heard the learned counsel for the parties and have gone through the available record.
The petitioner has disclosed the age of the minors in para No,3 of the application, as 4 years, 7 years and 8 years, at the time of filing application under sections 9/25 of the Guardians and Wards Act, before the trial Court. Under section 17 of the Guardians and Wards Act, the welfare of the minors is to be considered by the Guardian Judge. In this case the petitioner has examined himself as witness and in cross-examination he has admitted that he has contacted second marriage on 22nd April, 2005 and he is residing in Sibi in connection with his service/job and further admitted that he has to visit his house fortnightly in a month. Admittedly the petitioner has contracted a second marriage and. Has children from the second wedlock. The petitioner mostly remains out of his house in connection with his job and in the circumstances there would be no one to look after the minors except the step-mother. The step-mother cannot be substituted for the real mother and the minors cannot be left to the mercy of the step-mother, particularly when the real mother of the minors (the respondent) has neither contracted second marriage nor is suffering from any disqualification. The evidence available on record manifests that the welfare of the minors lies in their custody with their mother and being natural guardian she can maintain her children with all love and affection as compared to the step-mother.
6. The contention of learned counsel for the petitioner that the respondent is jobless and has no source of income is devoid of any force, as it is the bounded duty of the petitioner to maintain his children till the age of majority and paucity of the mother to maintain her children could not be treated as disqualification of the mother to retain the custody of the minors.
7. The second contention of the learned counsel for the petitioner that minors are not getting education properly in the custody of respondent is also devoid of any force for the reason that it is prime duty of the petitioner to pay the educational expenses of his children. The petitioner being father, if so convenient, may opt to get the children admitted in reputable schools and arrange for their tuition etc. As well without dislocating their custody. The authorities citied and relied upon by both the learned counsel for the parties are distinguishable and are not relevant to the facts and circumstances of the present case. In the referred case of "Mehmood Akhtar", the custody of a minor daughter was refused to the father despite remarriage of mother with a stranger and it was held that the welfare of the minor would lie in her custody with her mother. In the referred case of "Ganj Bibi" the minor son aged 7 years was in custody of the mother. Father had not taken any step to deprive the mother of the custody of the minor son. The mother applied for issuance of a guardianship certificate of the person of the minor but same was declined on the ground that under section 19(b) of the Guardians and Wards Act, 1890 it has not been established that the father is unfit to remain as guardian of the person of the minor. In the referred case of "Mst. Baso" both the father and mother, remarried after divorce. The mother having married a stranger and father having stepmother of the minor in his house were disqualified to get the custody of female minor. Maternal grandmother was held entitled to get the custody of the minor in the circumstances.
8. In view of above, we do not find any illegality or jurisdictional defect in the judgments passed by the Courts below, warranting interference by this Court in extraordinary constitutional jurisdiction.
Resultantly, this writ petition has no merit, therefore, the same is hereby dismissed.