1. ' AFTAB AHMED GORAR, J.---Through this constitutional petition the petitioners have impugned the Judgment dated 31-3-2011 passed by learned IIIrd Additional District Judge, Karachi West whereby he dismissed Family Appeal No.81 of 2010 filed by the petitioners against the Judgment dated 18- 10-2010 passed by VIIth Civil and Family Judge, Karachi West whereby he allowed G & W Application No.1043 of 2009 filed by respondent No.1 for custody of minors Hasnain Shah, Asmat Shah and Sonia Shah.
2. ' Brief facts of the case are that respondent No.1 Mst. Shabana filed application under section 25 of Guardians and Wards Act stating therein that she is real mother of three minors and was married with one Asif Shah, brother of the petitioners, who has since died and out of the wedlock abovesaid three minors were born. After the death of her husband, she was ousted from the house and three minors were forcibly retained by the petitioners though she is the real mother and natural guardian of the children and the petitioners have no authority to retain the custody of the minors, hence they are in illegal custody of the petitioners.
3. ' The petitioners appeared in court and filed written statement and while admitting that the respondent is real mother of the children, stated that her conduct with her deceased husband as well as the minors was not good. They further asserted that her father had executed a declaration on stamp paper in presence of witnesses before the `JIRGA' and handed over custody of the minors to the petitioners; that respondent No.1 has no source of income and she is not in a position to maintain the minors.
4. ' The learned Family Judge formulated the points for determination. Respondent No.1 examined herself in support of her case while the petitioners did not appear to adduce evidence although opportunity was afforded to them. Thereafter learned Family Court vide Judgment dated 11-10-2010 allowed the application and directed the petitioners to immediately handover custody of the minors to respondent No. 1 . The said Judgment was challenged by the petitioners in Family Appeal which was dismissed vide Order. Dated 31-3-2011, hence this petition.
5. ' Learned counsel for the petitioners contended that the impugned Judgment/ Order are contrary to law and principles laid down by the superior courts on the point; that the petitioners were condemned unheard and no opportunity was afforded to them to adduce evidence; that respondent No.2 has no means to provide necessities of the life particularly education to the children, as such welfare of the minors lies with the petitioners. He prayed for allowing the petition and setting aside of the impugned Judgment/ Order.
6. ' On the other hand, learned counsel appearing for respondent No.1 supported the Order/Judgment of the Courts below and stated that the findings of the courts below are just and proper and in accordance with the law and norms of justice; that respondent No.1 being real mother of the minors and their natural guardian, cannot be deprived of her right of 'Hizanat. He further contended that deceased husband of respondent owned movable/immovable properties and was carrying on business of breaking stone/marble and used to receive instalments of Oil Tankers/Water Tankers which, after his death, were usurped by the petitioners and respondent No.1 has filed Civil Suit No.1336 of 2012 in which status quo -order has been granted by this Court in her favour.
7. According to him, she is in a position to maintain the children properly. He prayed for dismissal of the petition.
8. ' I have heard learned counsel for the parties and perused the material available on record.
9. ' The paramount consideration regarding custody of minors is the welfare of the minors. In the instant case respondent No.1 is the real mother of the children whereas father has died. Obviously, paternal uncles cannot look after the children in a better way than the real mother. The plea taken by the petitioners is that the father of respondent No.1 had executed a declaration on stamp paper in presence of witnesses before JIRGA and handed over custody of the minors to the petitioners.
10. This is no ground to deprive a real mother of the custody of her minor children. In the case reported in PLD 1970 Karachi 619 it was held that custody of minor cannot be settled by a private compromise or even by arbitration and an agreement of such a nature cannot be enforceable.
11. ' The contention of petitioners' counsel that respondent No.1 is not in a position to maintain the children properly, therefore she cannot be handed over custody of the minors is also devoid of force. The honourable Supreme Court in the case reported in 1978 Law Notes SC 22 held that mere inability to maintain children is no ground for depriving mother of custody of her children. It was further held that overriding consideration is always welfare of the minor. In the cited case the dispute was between the mother and father of the children, as such the case of respondent No.1 in the instant case is even on better footings as admittedly father of the minors has expired and the dispute is between paternal uncles and real mother of the minors. As stated above, by no logic a paternal uncle could be given preference over a real mother in respect of custody of the minors.
12. Needless to say that in such a teen age lap of a mother is a cradle of Almighty Allah and none else is the substitute of a real mother for the minor children. Even otherwise, according to respondent No.1, her husband owned movable/immovable properties and was carrying on business of breaking stone/ marble and used to receive instalments of Oil Tankers/Water Tankers which runs in lacs of rupees and after his death all such properties and benefits have been usurped by the petitioners and respondent No.1 has filed Civil Suit No.1336 of 2012 in which status quo order has been granted by this Court in her favour. Copy of status quo order has been annexed with the counter affidavit filed by respondent No.l.
13. ' In another case reported in 2004 YLR 641 it was held that even remarriage of mother would not ipso facto result in handing over custody to father, what about the paternal uncles.
14. ' The other point agitated by the petitioners is that they were deprived from adducing the evidence by the Family Court and were condemned unheard which is in violation of the principles of natural justice. From the bare perusal of the record such B plea of the petitioners is belied. During the trial of the application in the Family Court, the case was fixed on several dates for filing written statement by the petitioners but they failed to do so, consequently on 17-8-2010 their side was closed. However, they were afforded another chance and their side was reopened on 6-10-2010 but despite that they did not bother to file written statement, as such ultimately again on 12-10-2010 their side was closed. However, a full-fledged hearing was afforded to petitioners counsel to argue the case of the petitioners and after considering the arguments advanced by the counsel for the both the parties, impugned judgment was passed, therefore, the plea of the petitioners that they were condemned unheard is absolutely incorrect.
15. ' Needless to mention that constitutional jurisdiction of this court is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course as to hamper the findings of fact, correctly recorded by the courts below.
16. ' For the foregoing reasons, I do not find any justification to interfere with the concurrent findings of the courts below. Accordingly the petition being devoid of merits, is dismissed in limine. The petitioners are directed to immediately hand over the custody of minors namely Hasnain Shah, Asmat Shah and Sonia Shah to respondent No.1, Mst. Shabana.