' By an order, dated 10th October, 1982 this constitutional petition was dismissed for reasons to be recorded later. The reasons for the said decision and the facts leading to this petition are as under : ' The petitioner was married to respondent No, 1 in August, 1967, at Quetta, whereafter they lived together. Out of this wedlock two children were born, namely, Nighat Saba (daughter) and Rehan Mustafa (son) in July, 1968, and July, 1970, respectively. In the year 1972 relations between spouse became strained which resulted in separation between the two. They also started litigation against each other at Quetta and Karachi. The petitioner filed application before Family Court, Quetta for custody of the children while similar application was filed by the respondent at Karachi for her appointment as Guardian for the aforesaid minor children. The present petitioner moved the High Court of Sind under section 14 of Guardian and Wards Act to decide the venue of the two suits.
During pendency of the application, the parties entered into compromise on 6th May, 1976 and filed it before this Court with the prayer that the dispute between the parties be disposed of in terms of compromise. This application was allowed by a learned Single Judge of this Court by his order, dated 6th May, 1976 in C. M. A. No, 1 of 1974.
2. The grievance of petitioner was that respondent No, 1 and her mother, respondent No, 2, did not comply with the terms arid conditions of the compromise. He, therefore filed an application under section 12 read with section 25 of the Guardian and Wards Act in the Court of District Judge, Karachi who forwarded it to Ilird Family Court Judge and VIIth Senior Civil Judge, Karachi for disposal according to law.
' The learned Senior Civil Judge recorded evidence of the parties and after hearing their council passed an order on 31st July, 1980 to the effect that the custody of minor son Rehan Mustafa shall be delivered to his father, the present petitioner, and that the minor daughter Night Saba shall continue to remain under the custody of her mother, that is, respondent No,
1. Respondents Nos. 1 and 2 being aggrieved by this order preferred appeal before District Judge, Karachi under section 14 of Family Courts Act and section 47 of the Guardian and Wards Act. The learned Additional District Judge to whom the appeal was transferred, after hearing the counsel for the parties, decided the case by his order, dated 4th February, 1981 whereby both the minor children were allowed to remain in the custody of their mother, the respondent No,
1. However, the petitioner was permitted to visit the minors once a fortnight at the residence of respondents Nos. 1 and 2.
3. Aggrieved by this order of District Judge the petitioner S. Maqsood Ali has filed this constitutional petition, inter alia, on following grounds :-
(i) That the decision of learned District Judge on the question of welfare of the minors is contrary to the establish of law and settled principle in this behalf.
(ii) That the learned District Judge on the basis of evidence on record, has come to a erroneous conclusion that the welfare of the children lies in their remaining under custody of their mother and that the principle laid down in PLD 1975 Lah. 87 has not been correctly applied to this case by a learned District Judge.
(iii) That there was absolutely no evidence before learned District Judge to come to the conclusion that the petitioner was an unfit person to have custody of the children or that the respondent No, 1 was a fit person to have their custody.
(iv) That respondent No, 4, that is, VIIth Additional District Judge, Karachi, was not competent to hear appeal from the order of the Family Court Judge under Guardians and Wards Act,. It is stated that the learned Additional District Judge has decided the appeal after it was marked by the learned District Judge to him for disposal. It is alleged that the Family Court Judge decided the Guardianship application in exercise of power of District Judge under the Family Courts Act, hence the appeal from the Order of Family Court Judge should have been preferred to High Court and not to District Judge.
4. The learned Additional District Judge who decided the appeal has discussed the evidence on record thoroughly and also referred to the relevant provisions of law and the case law on the point and came to the conclusion that the welfare of the two minor children lies in there custody being with their mother who lived in Karachi and not in their custody with the father who was railway employee stationed at Quetta. He has also referred to the order of the trial Court whereby the minor girl was allowed to remain with the mother at Karachi and the minor son was allowed to be kept by the father i. e. The petitioner at Karachi and observed that keeping the two minor children separately will not be conducive to promoting feeling of affection and love between them nor it will be conducive to a happy family life. No exception can be taken to this view of the learned Additional District Judge which is supported by the well-established principles of governing right of guardianship that the paramount and overriding consideration for determining the respective rights of the parents to claim custody of minor child shall be the welfare of the minor. No exception, therefore, can be taken to the finding of fact arrived at by the First Appellate Court about the welfare of the minors and that both of them should remain in the custody of their mother who lived at Karachi. Nothing has been pointed out by the learned counsel for the petitioner to indicate that this finding is contrary to evidence on record or to any well-established principle governing the question of guardianship.
5. Learned counsel for the petitioner has argued that the custody of the minors could not have been given to the mother unless it was proved that father was unfit to be the guardian of the children. The argument is misconceived. The father is always supposed to be guardian of the minor children but it does not follow from this that the custody of the minor children should also remain with the father. So far as the custody of the children is concerned, it is to be governed by the well- known principle of their welfare which is a question of fact and has already been decided by the learned Additional District Judge in favour of the mother. The order of the first appellate Court does not show that the mother has been appointed guardian of the minors. She has only been held to be entitled to the custody of the minors because it was in the interest of both the minors to live together. It is also on record that the minor children are being well-looked after by their mother.
They are quite happy with their mother with whom they have been living for several years. It will be cruel if at this stage they are separated from their mother and allowed to be taken away by their father to Quetta. I had also called the minors to the Court to ascertain their wish as their wish is also one of the circumstances to be taken into consideration to determine the question of their welfare. Both the children stated before me that they are quite happy with their mother and that they are not prepared, at any cost, to go to Quetta with their father. In view of this attitude of the children it cannot be said that it would be conducive to their welfare if they are allowed to be separated from their mother.
6. The next contention of Mr. Mubarak Hussain Siddiqui, learned counsel for the petitioner, is that the law laid down in the case of Mukhtar Ahmed v. Aziz Begun: (1) has not been correctly applied by the learned Additional District Judge to this case. In the above case it was held by a learned Single Judge of the Lahore High Court that ordinarily mother is entitled to custody of minor upto the age of seven years and thereafter father is entitled to have the custody if he is equally competent to maintain the minor. It was further held that the father cannot be refused custody merely on the ground that father being stranger to minor since infancy it would not amount to his welfare to force the minor to live with the father. The learned Single Judge has held that the welfare of the minor child lies in his remaining attached to both the parents. There is nothing in the above case to hold that custody of the children should be given to the father even if it is not calculated to be in the welfare of the minors. Reference has also been made to the case of Haji Muhammad v. Raheela Nosheen (2) in which a learned Single Judge of the Lahore High Court has held that bringing up of a minor in circumstances giving rise to hatred in minor's mind against his parents, will not be in the welfare of the minor. Mr. Mubarak Hussain Siddiqui, relying on the above case, has urged that if the minors are kept away from the father in the custody of the mother, it will create hatred between the children and the father. It may be stated that several other factors are also to be taken into consideration for determining the respective rights of the father or the mother to have the custody of the minor children. In the present case it is an admitted fact that the petitioner is living alone at Quetta and that there is no female member living with him. He admitted this fact before this Court also at the B time of hearing of this petition. It can in these circumstances hardly be said that he would be in a position to look after the children properly while he remained mostly on duty as railway servant. The learned Additional District Judge also referred to this circumstance and was rightly of the opinion that the father was not in a position to look after the children properly. It cannot, therefore, be said that the two decisions of the Lahore High Court quoted above were wrongly held to be inapplicable in the case of the present minors.
7. The last point urged on behalf of Mr. Mubarak Hussain Siddiqui is that the District Judge was not competent to hear appeal against the order of the guardian Judge i. e. The Third Family Judge, Karachi. His argument was that originally the application for guardianship was filed by the respondent No,
1. Before the District Judge himself who had forwarded it to the learned Family Judge for disposal according to law and that the latter had decided the guardianship application in exercise of powers as ex officio District Judge. This question has been settled by a gull Bench decision of this Court in the case of Zaibunissa v. Muhammad Muzammal (3). The relevant observation made by the Full Bench of this Court in the said case may be reproduced hereinbelow with advantage : "It is true that section 25 of the West Pakistan Family Courts Act, 1964 expressly refers to the Guardians and Wards Act, 1890, but it is significant that the opening words of section 14 of the Family Courts Act, 1964 read : `Notwithstanding anything provided in any other law for the time being in force.' The clear effect of these words is to
(1) PLD 1965 Lah. 86 (2) PLD 1975 Lah. 687
(3) PLD 1972 Kar. 410 ' exclude any provisions of the Guardian and Wards Act which may be contrary to section 14. Even otherwise section 25 merely prescribes that a Family Court shall be deemed to be a District Court.
But a deeming clause creates a legal fiction and has to be construed strictly, therefore, as the Legislature has only enacted that the Family Court is deemed to be a District Court, it means that it is not a District Court, but that merely for the purposes specified in the section it would have status and powers of a District Court. Additionally the right of appeal against an order of a Court cannot possibly be described as the status and powers of the Court. Therefore, the deeming provision in section 25 of the said Act, cannot possibly lead to the conclusion that it confers on a litigant aggrieved by a judgment of a Family Court the rights of appeal and revision contained in the Guardians and Wards Act. Merely because a Family Court is deemed to be a District Court the rights of appeal and revision contained in the Guardians and Wards Act. Merely because a Family Court is deemed to be a District Court and order passed by it cannot be treated as an order of the District Court nor does it become appealable to the High Court. `Now, although section 25 is an provision, it relates only to procedure. The view that procedure does not include a right of appeal' does not admit of doubt.' It is now too late in the day even to argue that the words 'procedure' can include the right of appeal, which is a substantive right. A right of appeal is a creature of the statute, and the language of section 14 of the Family Courts Act is plain beyond any doubt the Courts have to give effect to it. The meaning of the word 'procedure' cannot be altered nor it is necessary to do so because there is no lacuna in section 14. As guardianship disputes fall under subsection (1) of the section, it is clear that the Legislature has conferred in plain and unambiguous language a right of appeal against every decree and decision of Family Court whoever be the presiding officer of that Court. In the result, Muhammad Ismail's case PLD 1969 Lah. 834 has not been correctly decided and should not be followed."
' When the decision of the Full Bench was brought to the notice of the learned counsel Mr. Mubarak Hussain Siddiqui he did not press this objection.
A. In view of the above discussion I do not find any reason to interfere with the order of the learned Additional District Judge regarding finding of fact, in exercise of constitutional jurisdiction. The petition is, therefore, dismissed but with no order as to costs. It may, however, be observed that the learned Additional District Judge has already granted permission to the petitioner to visit the minor children at Karachi intermittently. It is hoped that the mother will allow access to the petitioner to see his children every week in her house and to keep the children with him during holidays and, if the children so wish, may also allow them to go with him to Quetta during vacation or to enjoy holidays.