' This constitutional petition calls in question the appellate order dated 10-12-1985 passed by the learned District Judge, Sialkot, whereby he set aside the order dated 11-7-1985 of the learned Guardians Judge, Sialkot, granting the application under section 25 of the Guardians and Wards Act filed by Mst. Asima petitioner.
2. Briefly stated the facts are that Mst. Asima petitioner and Major Muhammad Khalid respondent were married on 5-10-1974 and out of the wedlock was born on 13-10-1976 a son, Umar Khalid, who is central figure in this unfortunate controversy. The relations between the spouses became strained and consequently Mst. Asima petitioner filed a suit for dissolution of marriage. This was decreed in favour of Mst. Asima. As during those proceedings Major Muhammad Khalid, inter alia, stated that he would not object to the dissolution of marriage provided the petitioner gave up her claim of dower and returned the ornaments, and that the minor son, Umar Khalid, then aged 5 years, would remain in the custody of the petitioner, the learned Judge Family Court dissolved the marriage, vide order dated 3-11-1981. The son (Umar Khalid) remained with the petitioner.
3. According to the petitioner, Major Muhammad Khalid respondent No, 2 came to Sialkot on 30-1- 1984 and contacted her and her father requesting that he be allowed to take Umar Khalid for 4/5 days to see his ailing mother (grandmother of Umar Khalid). She reluctantly acceded to his request who in the presence of the respectable of the limp had executed an agreement to the effect that he would return the custody of Umar Khalid to the petitioner. He took away the child and did not return obliging her to file application under section 25 of the Guardians and Wards Act.
' The above application was resisted by Major Muhammad Khalid respondent No, 2 and in the state of the pleadings and facts. Of the case the learned Judge Family Court framed the following issues :-
(1) Whether the petitioner lacks cause of action?
(2) Whether the Court lacks jurisdiction?.
(3) Whether the respondent gave any writing before the Family Court, Sialkot and divested the custody of the minor Umar Khalid in favour of the petitioner, if so, its effect?
(4) Whether the respondent obtained custody of the minor from the petitioner in writing or orally, if so, its effects?
(5) Whether it is in the welfare of the minor Umar Khalid that his custody should be returned to the petitioner?
(6) Relief.
' After recording evidence of the parties, the learned Guardian Judge held that he had jurisdiction to hear the case and that the petitioner had got the cause of action. Issues Nos. 3 to 5 were dealt with by him in a consolidated form and after considering the evidence and the respective contentions of the parties urged before him, decided these issues against Major Muhammad Khalid respondent and consequently, by his order dated 11-7-1985 allowed the petitioner's application. Feeling aggrieved, Major Muhammad Khalid preferred an appeal which was accepted by the learned District Judge, Sialkot, vide his judgment dated 10-12-1985 who set aside the order passed by the learned Guardian Judge and further directed Major Muhammad Khalid, respondent, to produce the minor Umar Khalid on 15th January, 15th April, 15th July and 15th October, every year in the Court of Senior Civil Judge/Guardian Judge, Sialkot or if any of the dates happened to be a closed day, then on the following day or if the Court happened to be on leave then before a Duty Judge who shall make arrangements for meeting of the petitioner. With Umar Khalid. Being dissatisfied with the judgment of the learned District Judge, Mst. Asima petitioner has filed this writ petition.
4. At the outset, I must observe that it is, indeed, unfortunate that the spouses who were expected to lead a happy married life and to set up a happy home for their child had fallen apart and the differences between them had gone to such an extent that they had become irreconcilable. They, however, appeared to be genuinely fond of their son but still they could not resolve their differences and work out a solution conducive to the welfare of the child and contrarily took the matter to the Court which, in considering the question of custody of a minor is guided by only the consideration of his welfare. The task is indeed, complex, difficult and delicate. It was with this object in mind that I heard preliminary 'arguments at length and ultimately on 18-11-1986 admitted the petition to regular hearing to consider the legality of the finding of the learned District Judge on the question of the welfare of the minor.
5. Learned counsel for the petitioner has contended that the petitioner had achieved custody of the minor under an agreement reached between the petitioner and Major Muhammad Khalid respondent during proceedings in the Court of Family Judge, whereby the respondent had himself surrendered the custody of the minor in favour of the petitioner to be brought up by her at her own expense and, therefore, he was disentitled to retain the custody of Umar -Khalid, the minor. Learned counsel further contended that Major Muhammad Khalid respondent had removed the minor from the custody of the petitioner on a false pretext and did not live up to his words. It was also contended that respondent No, 2 had a criminal history and in the circumstances and the facts of the case it will be in the welfare of-the child to live with the petitioner. With a view to substantiate his contention, learned counsel took me to the evidence to show that the learned District Judge had failed to properly apply his mind to the facts of the case, especially he did not give any consideration to the second marriage of Major Muhammad Khalid respondent, his conviction for immorality by the Army. His failure to provide education for over a year to the minor, and his criminal tendency coupled with an attempt on his part to create hatred in the mind of the minor towards his mother. He further urged that during pendency of the petition in this Court, Major Muhammad Khalid respondent did not allow meetings between the minor and the petitioner.
6. Learned counsel for Major Muhammad Khalid respondent, on the other hand, contended that learned District Judge, while deciding the appeal had kept in view the basic consideration relating to the custody of the minor, such as the welfare of the minor and the principle of Hazanat. He further urged that the minor is now aged 11 years and is intelligent enough, and that he in his statement before the Court had categorically refused to see his mother. It was contended that in deciding the matter relating to the custody of the minor the choice of the minor has to be given due consideration. Learned counsel also contended that `welfare' being a question of fact cannot be called in question in a constitutional petition, especially when such a decision is based on the relevant evidence and the principles relating to the custody of the minor. He also urged that even if the decision of the learned District Judge is found to be erroneous on this question, still it will not constitute an act without lawful authority. Reliance in this behalf is placed on Muhammad Hussain Munir v. Sikandar etc. (1).
7. I have given the matter my most anxious consideration and note that legal position as seems to emerge from the various authorities cited at the Bar is that in disposing of an application under the Guardians and Wards Act the predominant consideration is welfare of the child whose custody is claimed by the rival parents. Of course, in doing so the B personal law applicable to the parties cannot be ignored altogether. But the paramount consideration in considering an application under section 2) ibid seems to be the well-being of the child. The learned District Judge has not departed from the above principle and while deciding the case he, besides considering the question of remarriage of the petitioner, has taken into consideration all the relevant material on the file. I may point out hear that on the question of remarriage, learned counsel for the petitioner has submitted that this was an irrelevant consideration for the simple reason that the child in the present case was not a female. This argument has, however, not impressed me. The real question involved in this case is the right of the father under the principle of Hazanat rather than the question of forfeiture of a right on account of remarriage of the petitioner. The fact remains that the learned counsel for the petitioner has not been able to point out any relevant material on the file that has been left out {{FOOT NOTE}}
(1) PLD 1974 SC 139 {{FOOT NOTE}} of consideration by the learned District Judge or could be said to have been misread by producing a jurisdictional defect. His emphasis throughout have been on the appreciation and reappraisal of evidence and wished the substitution of the decision for that 'recorded by the learned District Judge which I am afraid is not permissible. If any authority is needed for this proposition, reference be made to Hamayat Khan and another v. Ahmad Din and 2 others (1). Besides, as held in Rahim Ullah Chaudhry v. Mrs. Sayeda Helali Begum and others ,,(2), 'welfare' is a question of fact and it is well-established principle that in the exercise of the constitutional jurisdiction this has never been- the practice of this Court to interfere or disturb a finding on a question of fact arrived at by any Court o authority even if it be shown to be wrong. It has also been laid down in Muhammad Hussain Munir v. Sikandar (3), that a tribunal having jurisdiction to decide is competent to decide a matter rightly or wrongly and the mere fact that the decision is incorrect does not render it as without lawful authority. This principle was reiterated by Supreme Court of Pakistan in other cases reported as Muhammad ,Sharif and another v. Muhammad Afzal Sohail etc. (4) and Abdur Rehman Bajwa v. Sultan and 9 others (5). Respectfully following the above pronouncements of their Lordships of the Supreme Court, I am not persuaded to substitute my own decision for that of the learned District Judge, even if, it be incorrect as canvassed by the learned counsel for the petitioner or to disturb it. The learned District Judge has not committed any illegality and I am of the view that the present petition merits dismissal on this ground alone.
8. Additionally, I may further point out that during the hearing of this petition I had the opportunity of interviewing the child for ascertaining his choice. He appeared to be intelligent and capable of expressing E his choice which he forcefully expressed against the mother (petitioner) and in favour of the father (respondent). This was viewed by the Supreme M Court in Talat Nasira V. Mst.
Munawar Sultana (6), is one of the relevant factors in determining the question of the custody of the minor. A reference may also be made to Mst. Parveen Akhlar v. Muhammad .4shraf (7), F where a mother remarrying a stranger was considered disentitled to the custody of minor.
' For the reasons given above, I am not persuaded to hold that the order passed by the learned District Judge is without lawful authority and consequently dismiss the petition leaving the parties to bear their own costs. {{FOOT NOTE}}
(1) 1983 SCR 59 (2) 1974 SCM R 305
(3) PLD 1974 SC 139 (4) PLD 1981 SC 246
(5) PLD 1981 SC 522 (6) 1985 SCM R 1367
(7) 1986 SC MR 1944 {{FOOT NOTE}}