Petitioner (mother) through this constitutional petition calls in question orders of the Guardian Judge, Sialkot, dated 15-9-1985, and of the learned Additional District Judge, Sialkot, dated 20-1- 1986, whereby it has been held that the respondent (father) was entitled to the custody of his minor son.
2. Facts, briefly stated, are that Mst. Salima Bibi petitioner and Muhammad Khan respondent were married on 28-6-1973 and out of the wedlock, a son named Mushtaq Ahmad was born. Relations between the parents of the minor became strained which finally resulted in the dissolution of marital ties between them when the respondent divorced the petitioner in 1982. Thereafter, the respondent brought an application before the Guardian Judge, Sialkot, in 1984 for the custody of his minor son, who at that time was stated to have attained the age of 9 years. It was alleged by the respondent that the petitioner was injecting hatred in the mind of the minor against him. He also claimed that he wanted to give education to his son. Respondent's application was contested by the petitioner on the ground that he had contracted a second marriage and that he had never given any maintenance to the minor. Pleadings of the parties gave rise to as many as 5 issues.
Issue No.4 which is relevant for the purpose of this petition is reproduced hereunder:- "Whether it is in the welfare of the minor that his custody be handed over to the petitioner? O.P.P."
3. Both the parties led evidence in support of their respective contentions. Learned Guardian Judge found on issue No.4 that the minor having crossed the age of seven years, respondent was entitled to his custody. It was also found that it was in the welfare of the minor to hand over his custody to the respondent. Respondent's application was accordingly allowed and the learned Guardian Judge vide order dated 15-9-1985 directed that the custody of minor son be handed over to his father, the respondent.
4. Petitioner preferred an appeal but with no better result as the same was dismissed by the learned Additional District Judge by order dated 20-1-1986 with the observation "however, the appellant will be entitled to see the minor child with the permission of the respondent /father."
Learned Additional District Judge held that under Muslim Law, father was entitled to the custody of a male child after he attained the age of seven years unless he was shown to be disqualified.
Learned Additional District Judge took note of the two facts pressed against the respondent, namely that he had contracted a second marriage and he did not provide any maintenance for the minor and observed that so far as the maintenance was concerned there was no evidence that it was demanded by the petitioner or that the respondent refused to pay it. As regards the second marriage of the respondent, learned Additional District Judge held that this per se would not disentitle him to the custody of his minor son "unless and until it is shown that due to second marriage it would not be possible for him to look after the minor in a better way and the welfare of the minor demands that the custody should remain with the appellant. No such evidence has been led by the appellant." Learned Additional District Judge also observed that circumstances under which the minor was being brought up were not conducive of his well being. Note was taken of the fact that the grand mother of the petitioner was challaned for the sale of illicit liquor and that the petitioner, too, had perjured herself by making a statement in Court and she was convicted by the learned Guardian Judge under section 193, Cr.P.C. It was further noted that the respondent was economically sound and was capable of giving more material comforts and better educational facilities to the child and it was not possible for the petitioner to look after the grown up child. On consideration of all these facts, learned Additional District Judge came to the conclusion that it was in the interest of the minor that his custody should remain with the respondent.
5. I have heard the learned counsel for the petitioner. He has assailed the validity of the impugned orders mainly on the ground that the fact that the respondent had contracted a second marriage and he failed to provide any maintenance to the minor rendered him disqualified to claim the custody of his minor son and the learned Additional District Judge erred in law in holding that notwithstanding these circumstances, respondent was not disentitled to the custody of the minor.
According to the learned counsel, welfare of the minor demands that the mother should have been allowed to retain his custody. In support of his submissions, learned counsel relied upon Mst. Zohra Begum v. Sh. Latif Ahmad Munawar PLD 1965 (W.P.) Lah. 695 and Shagufta Bano v. Musarrat Hanif 1982 CLC 1821. Cases cited by the learned counsel are of no help to him. The first mentioned case was decided by this Court in appellate jurisdiction where it was possible to form its own opinion and come to its own conclusion on the given facts regarding the welfare of the minor. Second case though in writ jurisdiction proceeded on its own facts. The contest therein was between the mother on the one hand and the maternal --grand-parents of the minor on the other and the Courts below had proceeded on the assumption that the mother having re-married had lost the right of custody of the minor and that the maternal-grand--mother was the person entitled to the custody under Muslim Law. It was held that the minor being above the age of seven years, maternal- grandmother "had no inherent right under the Muslim Law to claim custody of the minor in preference to the petitioner. "The cited case is obviously distinguishable from the present one where the dispute is between the mother and father of the minor and it is not disputed that the father is entitled to the custody of the minor son above the age of seven years, unless proved to be disqualified.
6.No doubt, the paramount consideration in the matter of custody of minors is their welfare and not the rights of parents. It is a however, presumed that the welfare of a minor lies in his custody being given to a relation entitled to it under Muslim Law. This presumption can, of course, be rebutted by bringing out the circumstanceswhich show that the welfare of the minor dominantly lies elsewhere.
Now, in the instant case, minor being a grown up boy of about ten years of age, his father, the respondent was entitled to his custody according to the principles of Muslim Law. Learned Additional District Judge, as noted above, on consideration of all the relevant circumstances came to the conclusion that the fact of non-provision of maintenance for the minor and the respondent having contracted second marriage did not disentitle him to the custody of the minor. View taken by the learned Additional District Judge is supported by judicial precedents. In Ali Akbar v. Mst.
Kaniz Maryam PLD 1956 Lah. 484, it was held that "it has to be presumed that the welfare of the minor lies with the father and there should be strong reasons for depriving the appellant of the 'custody of his child. I have only to consider whether any such reasons exist. It is E impossible to hold that if the father, who has divorced the mother of the minor marries again, he forfeits the right to the custody of the minor. I cannot presume that the second wife will ill-treat the child though if the child was made to live with the stepmother and she in fact ill-treated him that may be a good ground for an order against' the father." In yet another case reported as Mst.
Munawar Jan vs. Master Muhammad Afsar Khan PLD 1962 (W.P) Lah. 142 it was held that "the fact that a person has a second wife and children from his second wife has never been regarded as a sufficient ground to disentitle him from thecustody of his children. The fact that he did not pay any maintenance till he was compelled by the Criminal Court, is also not such a circumstance as to deprive him of the custody of his son".
7.Apart from what has been stated above, even if the views taken by the learned Additional District Judge be incorrect and it were possible for this Court to come to a different conclusion on the facts aforementioned, that would be no reason for interfering in writ jurisdiction with the impugned orders of the Courts below. Needless to emphasize that the constitutional jurisdiction is distinguishable from I that exerciseable in a fulfledged appeal. While examining the question of constitutional jurisdiction of this Court, their Lordships of the Supreme Court have repeatedly held that if a Court or a Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived does not render the decision without jurisdiction. Refer PLD 1983 SC 451.
8. Before concluding, I would like to observe that the respondent Muhammad Khan, who is presently employed at Karachi, appeared through his counsel at the limine stage in pursuance of this Court's direction and gave a written undertaking to the effect that he shall educate the minor in Karachi in a English School; that after every three months, he will arrange the meeting of the minor with his mother at Karachi in the house of Muhammad Aslam (petitioner's brother) who is also employed in a silk factory and is residing in Sher Shah Colony at Karachi; that he shall pay Rs.300 in lump sum to the petitioner for coming over to Karachi after every three months; and that if the petitioner is not willing to come to Karachi, the child will be sent to the native village twice a year during vacations.
It may be pointed out that the aforesaid undertaking was given by the respondent with a view to bringing about a compromise. Learned counsel for the petitioner, however, did not accept the undertaking given by the respondent and he argued the case on merits. I do not, therefore, consider it appropriate to give any direction on the basis of this undertaking. It shall, however, be open to the petitioner (who has already been held entitled by the impugned order of the learned Additional District Judge to see the minor child with the permission of the respondent /father) to approach the learned Guardian Judge who shall pass appropriate orders for arranging the petitioner's meeting with her minor son and in doing so, he shall keep in view the undertaking given by the respondent in this Court.
9. In view of the foregoing discussion, impugned orders do not call for any interference in writ jurisdiction. This petition, therefore, fails and the same is dismissed in limine with the aforementioned observation.