In this Constitutional petition the legality of order dated 23-6-1988 passed by the learned Additional District Judge, Jhang, dismissing the petitioner's appeal against the order dated 14-4- 1988 passed by the learned Guardian Judge, Jhang in the matter of custody of minor, has been called in question.
2. Respondent No.l made an application under section 25 of the Guardians and Wards Act, for restoration of custody of his three minor sons namely Shahid Mahmood, Zahid Mahmood and Khalid Mahmood. According to his allegations the present petitioner was not taking proper care of the sons and they were not being brought up in good atmosphere. He also alleged that it was for the welfare of minors that their custody be given to him. This application was contested and the learned Guardian Judge framed the following issues:- (i)Whether it is for the welfare of the minors that they should be given inpetitioner's custody? OPP.
(ii)Relief.
After recording evidence of the parties the learned Guardian Judge held under issue No.l that the welfare of one of the minors namely Shahid Mahmood was in giving his custody to respondent No.l whereas regarding others it was held that their welfare was in maintaining their custody with the present petitioner. The petitioner feeling aggrieved filed appeal before the learned Additional District Judge, Jhang, which has been dismissed by order dated 23-6-1988.
3. The main burden of the argument presented by the learned counsel for the petitioner was that both the Courts below acted mechanically in giving custody of Shahid Mahmood minor to respondent No.l and did not apply their judicial mind to the controversy regarding welfare of minors on the basis of evidence produce by the parties on the record. His precise submission was that the Courts below have acted on the presumption under Muhammadan Law that the custody of the male child after he had attained age of seven years, was to be delivered to the father whereas according to him irrespective of the age of the minors, the Court was bound to determine on the basis of evidence as to which of the parties was entitled to have the custody of minors.
4. Learned counsel for respondent No.l opposed the writ petition by arguing that the evidence on the record is sufficient to establish that the welfare of the minors was in giving their custody to respondent No.l and the orders of the Courts below even if tested with reference to the said evidence by this Court no interference was called for.
5. This Court in Constitutional jurisdiction under Article 199 has no jurisdiction to substitute its own findings for those recorded by the Courts below. It is apparent from bare reading of both the impugned orders that the Courts below mainly proceeded to pass orders on the erroneous assumption that after a male minor had attained age of seven years, the question regarding his custody was necessarily to be resolved in favour of the father. It is not discernible from the orders that while determining welfare of the minors the evidence of the parties brought on the record was also kept in view. The argument of the learned counsel for respondent No.1 is not correct. It is true that under the Muhammadan Law the mother is not entitled to retain the custody of male minor A after attaining the age of seven years and that the father is entitled to claim his custody, but this right of father can be resisted by mother by establishing that the father was not a fit person to whom the custody of such a minor should be given. Learned counsel for the petitioner submitted that the petitioner led evidence to establish such circumstances disentitling the respondent/father to get the custody of Shahid Mahmood minor who had attained age of seven years. The two Courts below have not discussed the evidence of the present petitioner from this angle. It was necessary for them to have appraised and discussed the petitioner's evidence and recorded a clear finding whether the petitioner established her allegations against respondent No.l on account of which he could be denied, his right to have the custody of this minor. Likewise the petitioner being the mother under the Muhammadan Law is entitled to retain the custody of the other minor sons till they attain the age of seven years and respondent No.] plaintiff could claim their custody even before they had attained the age of seven years if he could establish that the petitioner was not entitled to retain their custody and it was in the welfare of the minors that their custody be handed over to respondent No.l. Respondent No.l produced evidence to etablish that the petitioner no I longer was a fit person to retain the custody of the other two minor sons who had not yet attained the age of seven years. The evidence of respondent No.l from this angle has also not been considered and no finding given. The Courts below appear to have acted mechanically on presumption under Muhammadan Law and passed orders for handing over the custody of Shahid Mahmood who attained the age of seven years to respondent No.l. It is, therefore, possible to hold that the Courts below have not decided the case in accordance with law and on the basis of material brought on record. The impugned orders are not sustainable in law. The writ petition succeeds. It is accepted, the impugned orders dated 14-4-1988 passed by the learned Guardian Judge and the order dated 23-6-1988 passed by the learned Additional District Judge, Jhang, are hereby declared to have been passed without lawful authority and of no legal effect and quashed.
The case is remanded to the learned Guardian Judge, Jhang, to decide the application of respondent No.l, under section 25 of the Guardians and Wards Act afresh on the basis of evidence recorded, in accordance with law. The parties are left to bear their own costs and are directed to appear before the learned Guardian Judge, Jhang on 22-2-1989. The case shall be disposed of by the learned Guardian Judge within four months positively from 22-2-1989.