SABIT ULLAH KHAN, J.- The petitioner, Mst. . Shama, through this petition has invoked the constitutional jurisdiction of this Court under Article. 199 of the Constitution of the Islamic Republic of Pakistan, 1973, challenging therein the concurrent judgments of the learned Senior Civil Judge/Judge Family Court-1, Swat dated 29.06.2024, and the learned Additional District Judge/Izafi Zilla Qazi-III, Swat dated 30.10.2024. Vide judgment dated 29.06.2024, the petition filed by respondent Syed Amin Shah under Section 25 of the Guardian and Wards Act, 1890, was accepted, and accordingly the custody of minors, Mst. Afia Bibi and Syed Hamad Ali, was granted to their biological father, Syed Amin Shah. Aggrieved thereby, the petitioner has preferred a guardian appeal, which was dismissed by the learned appellate court through the impugned judgment dated 30.10.2024. The petitioner now seeks reversal of both impugned judgments in terms of restoration of custody of the minors.
2. Arguments heard and record perused.
3. The matters of custody are to be decided solely on the basis of the welfare of the minors, which includes physical, emotional, educational, moral, and psychological aspects more particularly their future over all well-being as a responsible person.. As per Islamic jurisprudence and Para 352 of Muhammadan Law, the mother retains preferential custodial rights of children until the age of seven for male, and until puberty for female, provided she is not remarried to a stranger or expose the minors to any adverse circumstances. In this case, the petitioner's remarriage has introduced strained familial relations and criminal allegations involving her new husband, who too is no one else but the real brother of her previous husband i.e., respondent No.1, the father of the minors. So, this fact would expressly lead the case to the exceptional circumstances, thereby affecting the overall well-being of the minor. In the case titled "Waheeda Bashir Kiyani vs. Muhammad Khan"
(2022 YLR 2201), where the appellantthough was the mother of the minors but there were serious allegations against her and she had also remarried to another person. So, the Court has appointed the father of the minors as their guardian by holding as under: - "Serious allegations were levelled against the appellant in different FIRs, which were sub iudice before the courts below, such toxic state of affairs lead to an un-peaceful and unhealthy atmosphere which adversely affected the well-being of minors. Court was bound to make sure that the environment in which the minor was to be brought up was suitable for his health, religious and moral wellbeing and did not in any way harm his mental and physical health or his religious and moral values, spouses had segregated and the appellant had married to another person-Minors were school going grown-up boys living with their father since long and they could be better looked after by their father rather than appellant-Trial Court after due appreciation had issued the guardianship certificate in favour of the respondent which was rightly upheld by the High Court."
4. Conversely, the respondent, being employed in the Pakistan Army! has demonstrated the ability to provide a secure and stable environment to his children, hence in view of the attending facts and circumstances of the case the learned Courts below. have rightly prioritized the minors' welfare and committed no legal error while refusing custody of the minor to the petitioner. It is well- settled law that custodial preference, can be justifiably reversed in view of overriding circumstances, as, affirmed in the cases titled, "Mst. Nazia Ghana) vs. Naveed AhmedSadhavo"
(2022 CLC 1829) and "Abdul Ghaffar vs. Shoukat" (2022 YLR. 2482), where courts favored the father due to proven risks in maternal households. In the former case it was held that: - "Growing child always learns from his surrounding as a whole, therefore, the term 'lap' in such like matter shall never be confined to its literal meaning-Petitioner was dependent upon her father and brother, her father, head of family, was not only addicted to charas but was also a convict; her brother was also facing charge of possessing narcotics and the petitioner intended to grow minor in house of her father as well in their company-Petitioner admitted that she allowed the child/minor to remain with her 'brother and father and even the minor was allowed to go outside of the house with said persons)-If all said admitted facts were read together, it could safely, be concluded that if the custody was handed over to petitioner, the minor would have to grow in company of his uncle and maternal grandfather and not within lap (literally) of his mother alone---Such company, in no way, would be in the welfare and betterment of the minor-Courts below had rightly held that welfare of the minor lay with his father."
While in the latter case it was held that: - "Second wife of the petitioner had assured the court that she would leave no stone unturned in the best upbringing of the minor-High Court observed that welfare of the minor lay with his father-Constitutional petition was allowed: and the custody of minor was handed over to the petitioner, in circumstances."
Quite similar is the position in this matter as the minors are by now school going.
4. More so no evidence of the convincing nature could be produced by the petitioner, suggesting that she can better look after the minor, than their father particularly when she has admittedly remarried as stated above, which fact still appears to be a question mark on her reputation, as such, she was not entitled for custody. Guidance may be taken from the case titled, "Mst. Fozia Tasleem vs. Additional District Judge, and others' reported as 2023 MLD 2018, wherein it has been field that:- "Welfare of a child is to be determined on the basis of evidence on record and circumstances of each case. Prescribed principles of custody (Hizianat) have I to be followed yet such principles in favour of ('other or mother can be deviated in the supreme interest of child measured on the exclusive yardstick of welfare. No absolute right vests with father or mother regarding custody of child. hi presence of rival claims, supreme welfare of child is to be determined on the basis of evidence..' on record and prevalent circumstances Of a particular case."
Similar view's also adapted in the case titled, "Mst. Sharam Ellahi vs. Additional District Judge"
(2023 YLR 497) where it Was observed by the Court that the father, being the natural guardian, holds a superior claim in absence of any disqualification, and that custody proceedings are inherently flexible, permitting reconsideration where circumstances materially change. The relevant portion of the said judgment reads as under: - "Father was natural guardian of the minors and he could look and take care of the welfare of the minors in a better way, when specifically, there was not allegation of the character or any other negative oblectact which was necessary to refuse the real father for the custody of minors."
5. This principle was consistently upheld in the' case titled, "Nosheeba Nazeer vs. Sajjad Ahmed"
(2021 CLC 704) and "Mst. Ayesha Abdul Maleek vs. Additional District Judge, Sahiwal" (2020 YLR 401), where it was held by the Court that the father was properly looking after the minors in a proper way as pet-I law besides he was financially sound, therefore, custody of the minors with their father could not be disturbed. The following view was adapted by the Court in the ibid judgmerit.
"Courts below had rightly concluded that petitioner mother was not entitled to the custody of minor daughter and respondent father Was entitled to retain her custody as he had sound status-Respondent father was looking after the minor properly-Petitioner mother of minor daughter was entitled for visitation rights---No illegality or jurisdictional error had been pointed out in the impugned orders passed by the Courts below".
Learned counsel for the petitioner has not been able to point out any illegality, irregularity, or jurisdictional defect in the impugned concurrent findings of the learned Courts below.
3. In view of the foregoing discussion, the petition, being meritless, stands dismissed.' The impugned judgments dated 29.06.2024 and 30.10.2024 are maintained. The custody of minors shall remain with the respondent father namely Syed Amin Shalt However, .the petitioner shall retain visitation rights, which shall be exercised in a controlled, neutral, and secure environment to ensure: the minors' psychological comfort. The respondent/ father shall bear all expenses related to the minors' education, healthcare, and overall welfare. This order shall remain effective unless any significant change in circumstances justifies a future reassessment of the custody of the minors.