' On 9-9-1987, Mst. Ghulam Zohra, divorced wife of the petitioner Muhammad Ramzan, brought an application under Section 25 of the Guardians and Wards Act for custody of her two minor children Mst. Musarrat Bibi then aged 71/2 years and Abdul Khaliq of the age of about 4, with the assertion that they had been taken away by the petitioner on the pretext of meeting with the relatives and were refused to be returned by him. Petitioner contested the application with the submission that both the children were actually parted with by their mother at the time of divorce by also agreeing that she would not claim them after divorce. Four issues, respectively relating to her entitlement to custody of the minors, her being estopped by conduct to claim custody, absence of cause of action and the relief were set down to be tried and parties led their evidence on consideration whereof learned Guardians Judge came to the conclusion that welfare of both the minors was in their living with the mother who, he, however, held, was estopped by her words and conduct to claim custody and by his order dated 16-10-1989 dismissed her application on account of adverse findings reached under the 2nd and 3rd issues.
2. Mother's appeal there against came up for hearing before a learned Additional District Judge who affirmed the trial Court's finding with regard to welfare of the minors for the added reason that their father had since remarried and the children ought not be exposed to the proverbial hostility of a step mother and, as regards the alleged undertaking given by the real mother at the time of her divorce, he came to the conclusion that it had not been proved due to failure of production of Talaqnama and, even otherwise, such an undertaking could not be of any legal effect.
Consequently, by his judgment dated 5-12-1989, learned appellate judge set aside the order impugned before him and directed the father of the minors to hand over custody of both the minors to their mother within 15 days but he permitted him to see them once in a month in the presence of the Chairman of the Union Council where the woman may be residing.
3. Father of the minors has now invoked Constitutional jurisdiction which it is well settled, does not happen to be a remedy of further appeal not actually provided by the Statute. There are concurrent findings of fact recorded by the two Courts of competent jurisdiction to the effect that welfare of the two minors is in their living with the mother.
4. Solitary contention half-heartedly raised by learned counsel for the writ petitioner is that the respondent-mother had herself bartered away the right of custody of the minors to secure her release from the bondage of marriage with the petitioner, therefore, she was not entitled to turn round to claim their custody after the divorce had become effective. The plea has been held below to have not been proved on the record. It has not been shown that the petitioner can get out of this finding. For more than one reason, such an averment cannot be given effect to as regards the minors because sole consideration to be kept in view in such a matter has to be the welfare of the minor which has to be decided by the Court independently and uninfluenced by the views thereabout held by the parties. Case of Mst. Khatija Khatoon (reported as PLD 1976 Karachi 506) is an authority directly in point. Therein learned Judges of a Division Bench held," No case under the Guardians and Wards Act, 1990 regarding custody or guardianship of minor can be decided merely by consent of the parties or by giving effect to any compromise." Two Courts below have, in lawful exercise of their parental jurisdiction found welfare of the minors to be in their living with the mother and no error of law or procedure has been shown to be involved in their conclusions concurrently reached in favour of the mother. Contention fails thus and is accordingly repelled.
5. In result of the foregoing there is not found to exit any case for exercise of Constitutional jurisdiction and the writ petition being without force is dismissed. However, parties are left to bear their own costs.