' M. SOHAIL IQBAL BHATTI, J.---This single order shall dispose of Writ Petition No,1443 of 2011 and Writ Petition No,1442 of 2011 as both the writ petitions are directed against a consolidated judgment and decree dated 24-5-2011 passed by the learned Addl. District Judge, Rawalpindi in which similar points of law and facts are involved.
2. Through these writ petitions the petitioner seeks indulgence of this court for setting aside the consolidated judgment and decree dated 24-5-2011 passed by the learned Addl. District Judge, Rawalpindi in which three appeals titled "Riasat Mehmood v. Mst. Nadia Parveen and others", "Mst.
Nadia Parveen v. Riasat Mehmood" and "Mst. Nadia Parveen and others v. Riast Mehmood." were filed by the parties.
3. The brief facts given rise to the filing of these writ petitions are that respondent No,1 filed a suit for recovery of maintenance allowance and dower as well as the petition for custody of minors namely Kiran, Hamza and Ramaiz, who were reportedly living with the writ-petitioner. The learned Family Court vide consolidated judgment and decree dated 3-12-2010 did not allow the dower and maintenance allowance to respondent No,1 but monthly maintenance allowance at the rate of Rs,2000 p.m. Was allowed to Rehan Ali minor and Rs,2500 p.m. Was allowed to Iram Shehzadi minor from the date of filing of the suit till the marriage of Iram Shehzadi minor and till attaining the age of majority by Rehan Ali minor with annual enhancement of 10%.
4. The petition under section 25 of the Guardians and Wards Act, 1890 for custody of Kiran, Hamza and Ramaiz minors was also dismissed. Aggrieved by the judgment and decree passed by the learned Family Court three counter appeals were filed which were decided by a consolidated judgment by the learned Addl. District Judge, Rawalpindi on 24-5-2011. The learned Addl. District Judge decided the matter regarding custody of three minor children namely Kiran, Hamza and Ramaiz in favour of respondent No,
1. However, the judgment of the learned Family Court to the extent of grant of maintenance allowance was modified and both the minors namely Rehan and Iram Shehzadi were found entitled to maintenance allowance at the rate of Rs,2500 p.m. Aggrieved by the consolidated judgment and decree dated 24-5-2011, the present writ petition as well as Writ Petition No,1442 of 2011 have been filed.
5. Learned counsel for the petitioner has drawn the attention of this Court to the affidavit submitted in evidence by respondent No,1 as P.W.1 and in cross-examination it has been admitted by respondent No,1 that she has been on numerous occasions leaving the house of her husband on account of marital dispute. She has further admitted in her cross-examination that she has been living with her parents and brothers. P.W.2 has deposed in evidence that two minor children namely Iram Shehzadi and Rehan have been getting good education. Upon query by this court the learned counsel for respondent No,1 has admitted that the petitioner does not have any source of income but since she has been living with her brothers and parents they would support in upbringing of three minor children whose custody has been given to respondent No,1 by the learned appellate court. It has been further admitted that the petitioner has retired from Army and three minor children are in custody of the petitioner who are getting good education. This Court in its parental jurisdiction asked Kiran and Hamza minors regarding their subjects, the classes in which they are studying and conduct of their father towards them. Both the minor children, who seem to be quite intelligent, have stated in an unequivocal terms that they are studying in good schools in Class 8th and Class 4th and their father is properly looking after them after his retirement from Army.
Learned counsel for the petitioner has submitted that an illegality has been committed by the learned appellate court while handing over the custody of three minor children to respondent No, 1.
Learned counsel for respondent No,1 forcefully defended the appellate judgment and prayed for dismissal of these petitions.
6. I have given my anxious consideration to the facts of the case. In my opinion while handing over the custody to the mother or father under section 25 of the Guardians and Wards Act, 1890, the court should exercise its parental jurisdiction and should give due consideration to the fact as to the welfare of the minors. In my opinion Mst. Kiran, who is 13 years old would be in a better state while living with her father instead of her mother and cousins and same is the case with the remaining two minors. The petitioner has not contracted second marriage. He is a retired Army personnel and is in a better position to look after his A children. Moreover, to my observation the minors seem perfectly happy, healthy, well adjusted, confident and emotionally stable while they are living with their father. The primary consideration is undoubtedly the welfare of the minors while deciding the question of custody and in this respect the family court is under obligation to act in a parental manner and should not allow the custody of the minors to the mother or father in a mechanical manner.
7. In view of my observations, while accepting Writ Petition No,1443 of 2011 the judgment and decree dated 24-5-2011 passed by the learned appellate court to the extent of delivering the custody of minors namely Kiran, Hamza and Ramaiz to respondent No,1 is set aside. However, the judgment of the learned appellate court to the extent of grant of maintenance allowance at the rate of Rs,2500 p.m. Along with 10% annual increase to the extent of Iram Shehzadi and Rehan Ali is maintained.
Resultantly, Writ Petition No,1442 of 2011 stands dismissed.
8. As a sequel to the above discussion, the instant petition is accepted.