MUHAMMAD FARRUKH IRFAN KHAN, J. Facts of the case in brief are that the Petitioner-father filed an application for custody of his minor children namely Syed Zabi Ullah Shah and Syed Fasi Ullah Shah inter alia on the grounds that the respondent-mother has contracted second marriage with a person who is involved in serious criminal .cases and have also three children out of his first wife; that both the minors are being brought up in a criminal atmosphere; that the minors are being brought up in a criminal atmosphere; that both the minors have crossed the age of seven years as such under Islamic Law the respondent-mother has lost their right of Hizanat; that the Petitioner is a government employee who can give better education and health facilities to the minors as compared to the respondent-mother.
2. The respondent-mother contested the said petition while filing written reply. It was alleged that the petitioner-father has filed the custody petition just to harass and black-mail the respondent; that a suit for maintenance allowance of the minors has been decreed against the petitioner- father and he is not paying the decretal amount regularly; that the petitioner has also contracted second marriage; that the minors are getting proper education and living in a conducive atmosphere.
3. Out of divergent pleadings of the parties, learned Guardian Judge framed necessary issues.
Parties adduced evidence qua their respective contentions. After hearing the arguments, learned Guardian Judge vide impugned judgment dated 14.10.2017 dismissed the application 'of the petitioner-father. Being aggrieved the petitioner-father filed appeal before the learned appellate Court/Addl. District Judge who vide impugned judgment dated 08.01.2018 dismissed the same.
Hence, this Constitutional petition.
4. Learned counsel for the petitioner submits that both the Courts below have committed material illegality and irregularity while passing the impugned order/judgment; that the respondent has contracted second marriage with a person who has three children out of his first wife; that the respondent has also two children from her second husband as such she is not giving true care to the minors; that the second husband of the respondent is Shia by sect whereas the petitioner is Sunni; that if the minors remained in custody of the respondent there is apprehension that they will be brought-up according to the sect of their step-father, that second husband of the respondent has criminal record and also have hobby of pigeon keeping and the minors are being brought up in such a criminal atmosphere; that the second husband of the respondent has no source of income and the minors are not getting any proper education; that the minors have crossed the age of seven years as such under Islamic Law the petitioner is entitled to have their custody; that although the petitioner has also contracted second marriage but there is no child from the said marriage; that the minors are now at advanced age and they also need financial support; that the petitioner is a police employee have sufficient source of income and can look-after the minors properly as compared to the respondent; that both the Courts below while passing the impugned order/judgment have not considered these aspects of the matter and based their decisions on assumptions and presumptions; that the welfare of the minors lies in their custody, with the petitioner-father.
5. On the converse, learned counsel for the respondent submitted that the impugned order/judgment are well-reasoned; that the petitioner-father has no interest whatsoever with the welfare of the minors and he filed application for their custody just to avoid payment of their maintenance allowance; that the minors are residing with the respondent-mother since their birth and the have developed great love and affection for her; that the minors are enjoying good love and affection for her; that the minors are enjoying, good health and getting proper education; that the second husband of the respondent has no adverse interest against the minors; that the respondent is the real mother of the minors and there is no substitute of the mother on the earth; that the petitioner-father has contracted second marriage and if the custody of the minors is handed over to him then they will be at the mercy of step-mother which is not in the welfare of the minors; that the petitioner-father has also criminal record as such both the Courts below have tightly dismissed his custody application which needs no intervention by this Court in its Constitutional jurisdiction.
6. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
7. It is an admitted fact that the respondent-mother has contracted second marriage with a person who has already three children out of his first wife in addition to two children from the respondent and the minors are being brought-up with these five children of their step-father. The respondent-mother has not brought on record any convincing evidence from which it could be inferred that her second husband has sufficient source of income to maintain all these children. No doubt merely on the basis of poverty a mother cannot be deprived from the custody of the minors but here in this case as the mother has two children from her second marriage and three step- children, there is no evidence available on record that the maintenance allowance being paid by the petitioner-father is exclusively spent on the minors. It is not denied that the petitioner-father has also contracted second marriage but he has no child out of the said marriage. The love and affection of the petitioner father with the minors can be gathered from the fact that prior to filing of the instant application, he had earlier filed an application for custody of the minors which was dismissed by the learned Guardian Judge on the sole ground that the minors at that time were under seven years of age as such the mother had the right to retain their custody. As soon as the minors have crossed this barrier of age the petitioner-father again filed application for custody of the minors which shows that how keenly he is interested in custody of the minors.
8. It is also an admitted fact that second husband of the respondent-mother is involved in a chain of criminal cases. Learned counsel for the respondent has argued that the petitioner has also a criminal history but it is established on record that the petitioner has been acquitted in the criminal case which was registered against him while the second husband of the respondent is still involved in many criminal cases. It is also an admitted fact that the petitioner is a police employee while the second husband of the respondent has no permanent source of income and he is a pigeon fancier as well, therefore, it would not be in the interest and welfare of the minors to keep them in such an atmosphere.
9. Another important aspect of the case is that both the minors have crossed the age of seven years and under Islamic Law the respondent-mother has lost her right of Hizanat. It is also an admitted fact that step-father of the minors is Shia by sect while the petitioner-father belongs to Sunni school of thought. It is settled proposition of law that the minors are to be groomed according to the sect of their father. If the minors are brought up in the company of step-father, there is strong' probability that they may adopt the sect of their step-father hence giving rise to further controversies and reasons to feud between the parties.
10. Learned counsel for the respondent emphasized that the minors are residing with their other since long and have developed love and affection for her. It is well-settled now that while deciding the custody matter it is the duty of the Court to consider essential factors relating to welfare of the minors including their upbringing, education, health care, congenial domestic atmosphere and should not base its decision merely as to who has more love or with whom they are more associated with the mother or father. Reliance is placed on case reported as Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others (PLD 2003 S.C. 877) wherein it has been laid down as under:- "The mere consideration of love and affection of the mother with the child would be conducive to the welfare of the minor to give him in the custody of step-father in the presence of real father who admittedly has not gone for second marriage. The respondent having sufficient source of income is well-off. He is living in a defence area and is capable of maintaining the minor in better manner and providing him proper education and thus respondent being real father of the minor and the natural guardian cannot be deprived of the custody of his minor son of the age of more than 8 years on any other ground except the welfare of minor."
11. So far as the contention of the respondent that the petitioner has also contracted second marriage, suffice it to say that he has no child out of his second wife, therefore, in any eventuality the minors would not be exposed to well-known treatment of a step-mother as compared to step- father who has his own five children. The learned Courts below while rendering impugned order/judgment have not considered well-enshrined principles for deciding custody matters of minors and based their decisions on assumptions and presumptions which cannot be allowed to hold the field.
12. For what has been stated above, this writ petition is allowed and as a result the impugned order/judgment of the learned Courts below dated 1.10.2017 and 08.01.2018 are set-aside and consequently application of the petitioner for custody of minors namely Syed Zabi Ullah Shah and Syed Fasi Ullah Shah is allowed. Respondent-mother is directed to hand over custody of the minors to the petitioner within one month. However, respondent being a mother is entitled to have regular visitation rights for the minors, therefore, visitation schedule of the minors with respondent-mother is chalked out in the following manner:-- "i. The custody of the minors shall be handed over to the respondent-mother on 2nd and 4th Saturday of every calendar month at 05.00 p.m. and she shall return the custody of the minors to the petitioner on 2nd and 4th Sunday at 5.00 p.m. ii. On the occasion of Eid-ul-Fitar, the respondent/mother shall be entitled for custody of the minors on 2nd day of Eid-ul-Fitar from 5.00 p.m. and she shall return the custody of the minors to the respondent on the 3rd day of Eid-ul-Fitar at 5.00 p.m. iii. On the occasion of Eid-ul-Azha, the respondent-mother shall be entitled for custody of the minors on 2nd day of Eid-ul-Azha from 5.00 p.m. and she shall return the custody of the minors to the respondent on the 3rd of Eid-ul-Azha. iv. On the occasion of birth day of the minors, the respondent-mother shall be entitled for custody of the minors from 5.00 p.m. and she shall return the custody of the minors to the petitioner on the next day of birthday at 5.00 p.m. v. On the occasion of birthday of mother of the minors respondent-mother shall be entitled for custody of the minors from 05:00 p.m. and respondent/mother shall return the custody of the minors to the petitioner on the next day of birthday of the minor at 5.00 p.m. vi. During summer vacations, the respondent-mother will be entitled to have custody of the minors for one month. vii. During winter vacations, she will be entitled to meet with her minor children for five days."