SHAMSUDDIN ABBASI, J. By means of this constitutional petition filed under Article 199 of the Constitution of Islamic of Pakistan, 1973, the petitioner has prayed for following relief(s):- "It is therefore prayed that this Honourable Court be pleased to call R & P of Guardian and Ward Appeal No. 122 of 2021 from the Honourable Court of District and Sessions Judge, Karachi East and set aside the impugned judgment dated 13.12.2021 and the custody of the Minor/Respondent No.2 may please be handed over to the petitioner in the interest of justice and for the best welfare and well-being of the minor, Respondent No.2".
2. Nikah of the Respondent No.1 (Mst. Huma Rafiq) was solemnized with the Petitioner (Yasir Mumtaz Ali) on 05.10.2013 resulting birth of a female child Baby Alizay (Respondent No.2) on 24.07.2014. The matrimonial life fails due to domestic clashes and parties went in litigation. The respondent No.1 filed suit for dissolution of marriage by way of "Khula", maintenance etc whereas the petitioner instituted suit for conjugal rights, which was dismissed while the suit filed by the respondent No.1 was allowed, whereby a decree for -dissolution of marriage by way of "Khula" was granted in favour of the respondent No.1. The petitioner approached the Court of competent jurisdiction and filed application under Section 25 of the Guardian and Wards Act, 1925 vide G & W Case No.2309 of 2019, seeking custody of minor, which was dismissed vide order dated 27.03.2021, penned down by the learned Civil Judge and Judicial Magistrate-VII, Karachi (East). Against the said order, the petitioner preferred G & W Appeal No.122 of 2021 and by a judgment dated 13.12.2021, the learned Additional District Judge, Karachi (East) dismissed the appeal with modification, whereby the conveyance charges were enhanced from Rs.500/- to Rs.1,000/- per meeting. Aggrieved by the decision of the learned appellate Court, the petitioner has filed the instant petition mainly agitating that the both the Courts below have failed to consider the relevant aspects of the matter and applicable law involving welfare and well-being of the minor baby and passed the impugned order/judgment ignoring the neutral appreciation of whole evidence and application of judicial mind, hence the same are liable to be set-aside.
3. The learned counsel for the petitioner (father) has mainly argued that that the respondent No.1 (mother) has lost her right to custody upon she having contracted the second marriage; that the respondent No,1 (mother) is running a beauty parlor and mostly remains out of the house for a long time, therefore, the minor who is a female and is in growing age is unsafe in the hand of step father, who is totally stranger to the minor; that the respondent No.1 (mother) and her new husband are passing very liberal life style, beyond religious boundaries, which is heinous for the life, ethics and moral of the minor; that the respondent No.1 (mother) has no concern with the future of the minor, she is not vigilant in providing good schooling, teaching of Islam and other basic requirements, which are most essential for a female child; that the minor mostly busy in mobile phone, using social media, making tiktok, uploading her pictures and such other activities including fashion etc and in case the minor further remain in the custody of the respondent No.1 (mother) it will adversely affect her mind and she will suffer irreparable losses and injuries and her future will be in dark; that the petitioner (father) belongs to a respectable religious family and his all attentions are available for the minor and that he can take care of the minor lot better than the respondent No.1 (mother), hence in the best interest of the minor it would be appropriate that her custody may be given to the petitioner (father) and the minor should not be permitted to live with the step-father, which act is not acceptable in our society.
4. In contra, the learned counsel for the respondent No.1 (mother) has refuted the submissions of the learned counsel for the petitioner (father) and submitted that welfare of the minor lies with the respondent No.1, who is her real mother, and has lot of love and affection to the minor; that the petitioner (father) has contracted second marriage and he is living with his second wife; that he is a truck driver and due to his nature of job he mostly remains out of the house for a long period the minor is a female and the welfare of a female child always stays with the mother, which fact was considered in the concurrent findings of the two Courts below.
5. The learned AAG has supported the impugned order/judgment and submitted that the welfare and well-being of the minor lies with the mother and both the Courts below have rightly exercised their discretion in favour of the mother.
6. I have given my anxious consideration to the submissions of learned counsel for the, petitioner, learned counsel for the respondent No.1 and learned AAG as well as gone through the entire material available before me with their able assistance.
7. There is no denial of the fact that marriage between the parties has already been dissolved by way of "Khula" and the petitioner (father) took second wife. The record is also suggestive of the fact that the respondent No.1 (mother) obtained a decree of "Khula" in 2019, yet she did not contract second marriage, which shows that she is caring mother and can provide strong protection in bringing up his daughter in a better way other than the petitioner (father) and step-mother. Per learned counsel for the petitioner that respondent No.1 (mother) has also contracted second marriage and in support of his submission, she has placed on record some photographs On the other hand, the respondent No.1 (mother) has vehemently denied that she took second husband.
Mere photographs, in absence of Nikahnama and or any witness of Nikah, second marriage cannot be established. Even otherwise, If the contention with regard to second marriage of the respondent No.1 (mother) is taken as true then also the welfare and well-being of the minor daughter lies with her real mother in view of the fact that the father is a truck driver and remains out of home for his job and it would never be in the interest and welfare of the minor to remain in custody of her step- mother more particularly when her real mother is alive.
8. Admittedly, the minor is a female, aged abet 10 years, which is a growing age, resides with the respondent No.1 (mother) since birth. She requires full care and attention; indeed, the mother has developed an emotional attachment with her daughter. There is also no denial of the fact that the respondent No.1 is a real mother and has a right of "Hizanat" and cannot be deprived of her such right. The august Supreme Court in the case of Mst. Razia Rehman v. Station House Officer and others (PLD 2006 Supreme Court 533) has laid down a dictum and observed as under:- It is not denied that according to the Muslim Personal Law, the mother has the preferential right of HIZANAT (temporary custody of the minor) till the minor attains the age of seven in the case of males and the age of puberty in the case of a female minor."
9. It is well-settled law that paramount consideration while deciding the question of custody is the welfare of the minor irrespective of age, sex, and religion. Primarily, welfare includes his/her moral, spiritual and material well-being. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian and the preference of the minor if he or she is intelligent enough to make it. Article 12 provides that a child capable of forming his or her own view should be able to express it and it should be given due weightage. This Article suggests that Children's preferences can be a guiding factor in custody cases, hence, encouraging their participation and opinion in custody matters.
This is essential because custody is about the care and comfort of the child and the right of the child to a family. Custody matters are always sensitive and require a great deal of care as the Court has to weigh in all factors in order to determine where the welfare of the minor lies. In accomplishment of such object, this Court taken up the matter in Chamber in presence of both mother and father and their respective counsels and noticed that minor is too attached with her mother and on query posed she stated that besides her schooling she is taking religious education and presently she is in Chapter 23 of Quran-e-Pak. On the other hand, when father tried to meet her, she started weeping and showed reluctant and unhappiness to meet with the father, hence it becomes the duty of the Court to take care of the ward's welfare and shall ensure that the litigating parents are not disputing to settle their own score or to satisfy vanity or even to soothe his/her craving of love and affection for minor as could only be done if the welfare of the ward demands. In principle, i the cases, concerning the custody of a child, the Family Court is not required to go into the intricacies/technicalities of the matter and confine its findings to the extent of the welfare of the child/minor, which is a paramount consideration. Primarily, the reasoning assigned by the learned Guardian Judge is in accordance with the settled principles for the reason that the minor, baby Alizay, is only about of 10 years and she cannot be taken away from the mother, who is more caring to her daughter, due to her love and affection has not contracted second marriage and taken hectic efforts by running from pillar to post merely to continue custody of her daughter other than the petitioner (father), who took second wife. The learned appellate Court has endorsed the findings of the learned Guardian Judge and dismissed the appeal of the petitioner (father) taking into account all aspects of the matter and concluded as under:- 'No doubt, the court while deciding application under section 25 of Guardian and Wards Act about the custody of the minor has to consider the interest and welfare of the minor. The minor baby is of tender age of 07 years and in this tender age, it would be detriment for minor to remove the custody of minor from her mother. The minor baby is living with the respondent since her birth, who is taking care of her health, food, education and wellbeing. Depriving minor of this tender age from love and company of her mother will adversely affect the wellbeing of minor, hence the order about permanent custody of minor passed by trial Court does not require any interference by this Court. Here I rely upon rulings mentioned in 2008 MLD 989 Mst. Saima and others v. Shahzad Riaz and others as under:- "Hizanat -- Welfare of minor -- Right of father to claim custody of minor son is not absolute, welfare of minor is always a paramount consideration-Mother's lap is the first place of education where the infant learns and knows her/his mother and even otherwise the affiliation of child with mother is more than that of father".
10. No doubt, the petitioner is real father and has a right to meet with his daughter. Article 7 provides that every child has right to be cared for by their parents. Article 9 requires that in the event of separation between the parents, the child should be in contact with both parents unless either one can cause any harm. The respondent No.1 (mother) too admits that petitioner being father cannot be deprived to have a meeting with his daughter. She also grants her no objection for meeting of the minor with the petitioner (father) as per arrangements made by the learned Guardian judge but subject to conveyance changes as fixed by the learned Appellate Court.
11. As to the contention of learned counsel for the petitioner that the order/judgment, impugned herein, are bad in law and facts and contrary to the evidence brought on record are not legally correct. I am convinced that both the Courts below have appreciated the evidence and scrutinized the material available on record in complete adherence to the principles settled by the Hon'ble apex Courts in various pronouncements and has reached a just conclusion. I am, therefore; of the view that the order/judgment, impugned herein, are based on fair evaluation of evidence and documents brought on record.
12. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare and well-being of the minor and to ensure that no harm or damage comes to him/her physically or emotionally by reason of the breakdown of the family tie between the parents. The Courts are custodian of the minors and in suitable cases have ample powers under the Law as well as the Constitution to protect and safeguard the interest and welfare of the minor to ensure that as far as possible his/her physical safety, emotional well-being and welfare is secured and protected after a balanced and dispassionate assessm ent of the situation. Reliance may well be made to the cases of Mirjam Aherras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others 12018 SCMR 427) and Mst.
Madiha Younus v. lmran Ahmed (2018 SCMR 1991).
13. Admittedly, there are concurrent findings on the issue of fact against petitioner. Under constitutional jurisdiction re-appraisal of evidence in order to have a different conclusion than already inferred by the learned Courts below has never been considered an option to be upheld.
The Court under constitutional jurisdiction has to see whether any illegality has been committed by the forums below or the findings of the fact are based on material extraneous to the pleadings of the parties to justify interference on its part. The two courts have below concurrently refused to exercise their discretion in favour of the petitioner. The learned counsel for the petitioner too has failed to point out any illegality or irregularity and/or jurisdictional defect in the impugned orders/judgments of the two Courts below warranting interference by this Court while exercising extra ordinary constitutional jurisdiction. The impugned orders/judgments of the two Courts below are well reasoned and according to law, therefore, there is no reason to interfere in the concurrent findings of facts.
14. In view of the analysis and combined study of the entire record as well as applicable law, with care and caution, I am of the view that impugned order/judgment passed by the two Court below are well reasoned, according to law and outcome of a proper application of judicial mind to the facts and circumstances of the case and in accordance with law. Thus, this Court is hesitant to interfere while exercising its constitutional jurisdiction. In view thereof, the instant petition is bereft of any merit stands dismissed.