ZAHEER-UD-DIN KAKAR, J.---This judgment shall dispose of Constitutional Petitions Nos, 346 and 347 of 2015 as they arise out of the same consolidated judgment dated 21.3.2015 of Additional District Judge-V, Quetta.
2. Precisely stated the facts of the case are that respondent No,1 (plaintiff) filed a suit for dissolution of marriage on the basis of Khula and custody of minor namely Ilsa Khan against the petitioner (defendant) before the court of Additional Family Judge, Quetta (the trial Court). The suit was filed with the facts that the respondent and petitioner were married on 14.4.2004 and they were graced with the birth of baby girl Ilsa Khan on 31.4.2007; that the relations initially cordial became tensed due to harsh conduct of the husband (petitioner), who compelled her to demand money from her father, and on her refusal used filthy language; that this attitude developed hatred towards husband, thus, no chance for reconciliation. Suit was contested by the petitioner by filing written statement. Out of the pleading of the parties, the trial Court framed three issues and after recording statements of both the parties, vide judgment and decree dated 21.10.2014, passed the following order: "a. The suit to the extent of dissolution of marriage has already been decreed. b. The suit for custody, of minor is dismissed. c. The plaintiff is entitled to meet the minor, the schedule for meeting is fixed on 1st Sunday cf each month at 11:00 a.m. to 3:00 p.m. in the office of Civil Nazir."
3. Feeling aggrieved from the judgment and decree. dated 21.4.2014, Muhammad Alam (defendant) filed Family Appeal No,19 of 2014 and Nazish Qazi (plaintiff) filed Family Appeal No,20 of 2014 before the Court of Additional District Judge-V, Quetta (the appellate Court). The appellate Court, vide consolidated judgment and decree dated 21.3.2015 passed the following order: "The appeal filed by the defendant (appellant) challenging the territorial jurisdiction of trial Court is hereby dismissed, while the appeal filed by the plaintiff (appellant) is hereby accepted, the impugned judgment and decree dated 21.10.2014, passed by the learned Additional Family Judge, Quetta is set aside to the extent of custody of minor Ilsa to defendant and the custody of minor Ilsa is ordered to be given to the plaintiff another), while the visitation scheduled of the minor given by the trial court is intact with the modification that the plaintiff is duty bound to bring the minor for meeting with defendant as per schedule provided by the learned Additional Family Judge, Quetta. "(Underling is provided by us for emphasis)
4. Feeling aggrieved from the above underlining portion of the judgment and decree dated 21.3.2015 of the appellate Court, the petitioner filed Constitutional Petition No,346 of 2015.
5. The petitioner (defendant) feeling aggrieved from the concurrent findings of the Courts below regarding territorial jurisdiction, and to the extent of meeting of respondent No,1 with the minor, scheduled by the trial Court also filed C.P. No,347 of 2015.
6. It may be noted that initially the second marriage of respondent No,1 was denied, but at the stage of final hearing, the learned counsel for respondent No,1 admitted that after divorce from the petitioner, the respondent No,1 contracted another marriage with one Abdul Mueez Khilji. The petitioner also got married by taking another wife. Inter alia the ground asserted in the petition i,e, C.P. No,346 of 2015 for appointing as a guardian by the petitioner is that the respondent No,1 has married Abdul Mueez Khilji, who is not related to the minor Ilsa Khan in prohibited degrees and on this account, she has lost the right of Hizanat of the minor.
7. Learned counsel for the petitioner in C.P. No,346 of 2017 contended that the learned appellate Court has mis-appreciated the facts of the case, mis-applied the law and has drawn conclusion therefrom which are neither legal nor tenable under the law; that the appellate Court while considering the question of custody of minor in favour of respondent No,1 (mother) on the sole ground that she is residing at Quetta and presently the job of the petitioner is at Loralai, given the custody of minor to respondent No,1 (mother); that the respondent No,1 contracted second marriage with a person namely Abdul Mueez, who is not related to the minor Ilsa Khan, therefore, the judgment and decree of the appellate Court to the extent of giving custody of minor to respondent No,1 is liable to be set aside.
8. On the other hand, the learned counsel for respondent No, 1 opposed the petition and defended the impugned judgment and decree passed by the appellate Court and stated that though respondent No, 1 contracted second marriage, but this fact alone will not disentitle her from obtaining custody of minor Ilsa Khan. It is further contended that the petitioner has also contracted second marriage, thus, it is in the best interest of the welfare of minor that the custody of the ward be given to respondent No,1 (mother).
9. We have heard, the learned counsel for the parties and have gone through the available-record.
On perusal of the record, we are of the considered opinion that the provisions of Muhammadan Law is personal law, which apply for the purposes of determining the custody of the minor, while the course of law have always consider the welfare of the minor to be the paramount consideration for deciding as to whether the hizanat of the minor to be entrusted to the father or to remain with the mother. Father is the natural guardian and there is no need of appointment of father as guardian of the minor. The issue is of custody of minor. Their lordships of the Hon'ble Supreme Court in various judgments have considered this aspect of the matter and while determining the facts to be considered under Section 17 of the Guardians and Wards Act, had laid down the criteria, which is reported in the case of Mst. Akbar Bibi v. Shoukat Ali (1981 CLC 78 Lahore).
Furthermore, according to various judgments pronounced by the Courts of law, it has been held that while determining the question of custody of a female ward, the question of chastity to be jealously guarded, in case, if the lady contracts second marriage with stranger, she loses her right of hizanat. Reference is made to the judgment reported in case of Mst. Nazir v. Hafiz Ghulam Mustafa and others (1981 SCMR 2000), wherein it has been held that: "It is conceded before us that after the divorce, the petitioner has married another husband and is living with him. In these circumstances it is obvious that the custody of minor daughter of the petitioner from her previous wedlock with Hafiz Ghulam Mustafa cannot be given to her because in the very context hereinbefore mentioned it will amount to placing the minor in the custody of new husband of the petitioner who does not fall within a prohibited degree to the ward"
10. The aforesaid principle has been further elaborated in the case of Shabana Naz v. Muhammad Saleem (2014 SCM R 343) wherein it has been held that: "11. Para 352 of the Muhammadan Law provides the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and of her female child until she has attained puberty and the right continues though she is divorced by the father of his child unless she marries a second husband in which case the custody belongs to the father.
12. Para 354 provides for disqualification of female from custody of the minor, which includes the mother and one of the instance laid down is that if she marries a person not related to the child within the prohibited degree e.g. a stranger but the right revives on the dissolution of marriage by death or divorce.
13.Thus, it is apparent from reading of the two paras of the Muhammadan Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to the father. It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody."
11. In the present case nothing has been shown to us nor any fact cited, which may dis-entitle the petitioner from custody of his minor daughter Ilsa in the wake of fact that the mother has contracted second marriage with a person, who admittedly, is a total stranger to the minor Ilsa and is not within prohibited degree and no exceptional circumstances whatsoever have been argued before us, which may entitle the respondent No, 1 to have custody of the Ilsa Khan.
12. In view of the above, C.P. No,346 of 2015 is allowed and the judgment and decree dated 21.3.2015, passed by the appellate Court is set aside to the extent of custody of minor Ilsa Khan to be given to respondent No,1 and, the judgment and decree of the trial Court dated 21.4.2014 to the extent of custody of minor to the petitioner is upheld. However, the schedule of meeting is maintained.
13. As far as C.P. No, 347 of 2015 is concerned, although the learned counsel for the petitioner argued the case at some length, but could not point out any illegality, infirmity or irregularity in the impugned judgments of the Courts below with regard to the concurrent conclusion regardingterritorial jurisdiction. Furthermore, this Court always exercises restraint, while interfering with the concurrent findings. The writ jurisdiction cannot be exercised only for the purpose to substitute the view already taken by both the courts below after proper appraisal the evidence, unless some illegality or misreading is pointed out in the judgments of both the courts below.
Thus, the C.P. No, 347 of 2015 is without merit, is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.