' Applicant Laique All by invoking Constitutional jurisdiction of t Court, has assailed the judgment dated 23414987 delivered in G & Application No,692 of 1985 by the 1st Senior Civil Judge and Judge Family Cot Karachi West and the judgment dated 30-4-1989 delivered by the 1st. Addition District Judge, Karachi Central in Family Appeal No,17 of 1988.
2. Admittedly the applicant and the respondent No,1 were married w each other on 5-9-1980.
Before the marriage the applicant was residing at Tan Allah Yar, while the respondent No,1 was residing with her parents at Karac During the wedlock the husband and wife were blessed with two daughte namely, Bush-day and Asma alias Imama, who were born on 10-64s and 2-5-1982 respectively. After their marriage the respondent No,1 and t applicant resided together at Tando Allah Yar. Presently the parties are livi separate from each other, and their marriage has been dissolved as t respondent No,1 has been divorced by the applicant on 26-4-1983. Applicant resident of Tando Allah Yar but is serving in a Bank at Karachi. Respond( No,1 is employed in Civil Aviation Authority at Karachi, where she lives with two daughters from the applicant, in her parental house.
3. Prior to this there has been litigation between the parties. On 3-4-1.0 the applicant filed Family Suit No,84 of 1982 at Hyderabad for restitution conjugal rights but the same was dismissed.
Respondent No,1 filed Family Si No,787 of 1982 and No,2143 of 1982 against the applicant in a Family Court Karachi for maintenance for herself and for her daughters. She also filed at Karachi Family Suit No,788 of 1982 for recovery of dower debt. All these suits filed by the respondent No,1 at Karachi were disposed of under a common judgment dated 15-5-1985 by which the suits for recovery of dower and for maintenance of respondent No,1 were dismissed, while the suits for providing maintenance for the minor girls were allowed and the applicant was required to pay maintenance allowance for the minor girls at the rate of Rs,300 per month for each girl. Against the common judgment dated 15-5-1985, the respondent No,1 filed Family Appeals No,106 of 1985 and No,108 of 1985, while the applicant filed Family Appeal No,131 of 1985 and baby Asma alias Imama filed Family Appeal No,107 of 1985. All these appeals were disposed of by learned District Judge, Karachi (West) under a consolidated judgment dated 2-2-1986 by which the Family Appeal No,108 of 1985 was accepted and the claim for dower was decreed and the maintenance allowance for the minor daughters was reduced from Rs,300 per month to Rs,200 per month for each child and the respondent No,1 was allowed the maintenance allowance at the rate of Rs,300 per month only for the period from date of her divorce till expiry of her period of "Iddat". Appeals No,106 of 1985, No,107 of 1985, 108 of 1985 and No,131 of 1985 were decided accordingly. The applicant filed Guardianship Application No,1189 of 1982 for custody of his minor children but the same was dismissed for non- prosecution on 19-7-1983. {{PAGE CUT}}
4. It was after all this that the applicant filed G & W Application No,692 of 985 for custody of the minor children, namely, Bush-Day and Asma alias Imama. n said application, the applicant alleged that the respondent No,1 under the Compulsion of her parents, changed her behaviour, conduct and attitude and became careless and non-cooperative against the applicant as well as against her Children. That she forced the applicant to live as "Ghar Damad" with her parents. At on 6-11-1981 parents of the respondent No,1 came to house of the applicant Tando Allah Yar, and took away the respondent No,1 and her daughters to Karachi, for passing Moharram at Karachi. That the respondent No,1, contrary to her promise, did not return to the applicant even after fifteen days of her departure. Applicant added that on receiving a letter from the respondent that e of her daughters was ill at Karachi, he proceeded to house of his in-laws at arachi. That his in-laws called him with bad names and did not allow him to eet the respondent No,1 or his children and he returned to Tando Allah Yar applicant added that he tried to bring back the respondent No,1 and his children ut without any success. Applicant sent notice dated 11-2-1982 to the respondent 10.1 to join him. She replied the notice and did not join the applicant. That after le exchange of notices the applicant filed Family Suit No,84 of 1982 on 3-4-1982 m. Restitution of conjugal rights, while the respondent No,1 filed a number of nits against him. Ultimately the applicant divorced the respondent No,1 on 6-4-1983 as stated by him. The Talaq pronounced was confirmed by the concerned Chairman on 25-7-1983. In support of his prayer for custody of the linor children, the applicant stated, that the respondent No,1 and her family members were poisoning ears of the minor children against the applicant, that the minor children were being deprived of fatherly love and affection for which there was no substitute, that environments of the house of the respondent No,1 were very bad and non-congenial as divorced sister of the respondent No,1 was living there, and that house of the respondent No,1 was being visited by non-relatives. It was added that upbringing of the children in such an atmosphere would affect them adversely. The applicant added that he being real father of the minors, was deeply concerned with welfare and well-being of his children, for whom no proper person was available in house of the respondent No,1 to look after them, as the respondent No,1 and her sister were doing job and their third sister was in a College, and their mother was an old lady of feeble health.
5. In her written statement, respondent No,1 Nousheen Murad challenged the guardianship application to be barred by res judicata in view of dismissal of a similar application on 21-2-1985.
On merits the respondent No,1 brought counter-allegations against the applicant. She alleged that she was neglected and not paid dower money, that her dowery articles were snatched, that she was treated by inmates of applicant's house as a maid servant and rebuked and that she was being given left over food to eat. Respondent No,1 alleged that she was maltreated, humiliated and tortured physically and mentally by the applicant and his parents if she failed to procure money from her parents to supplement the money spent on family of the applicant. Respondent No,1 added that her delivery expenses on birth of her two daughters on 10-6-1981 and on 2-5-1982 respectively were borne by her parents. That before her first delivery the applicant called her parents at Tando Allah Yar by telling them about her serious illness and then told them to take her away to their house. In this way the respondent No,1 was forcibly pushed to house of her parents by the applicant who wanted her delivery expenses to be borne, not by him but by her parents, as alleged. In this way bot deliveries of the respondent No,1 took place at her parental house and the applicant did not pay for expenses of any delivery, as alleged. Respondent No, 1 added that her expenses and expenses of her children were being borne by the parents. It was added that the applicant had proved himself to be negligent husband and tyrant person and callous father, and he had no interest in the two minors. That the applicant wanted to cause mental anguish and harassm ent to the respondent No,1 because she had tiled suits against him.
6. After recording evidence of the parties, learned 1st Senior Civil Judge and Judge Family Court, Karachi West under the impugned judgment dated 2311-1987 held that the respondent No,1 was in a position to look after welfare of her minor daughters, that the interest of the minor daughters will not be adversely affected by living in house of the respondent No,1 whose divorced sister was also living there, that the applicant had been sending maintenance allowance for the children to the respondent No,1 who had been refusing to accept the same and that welfare of the children lay with the respondent No,1 except that the applicant was entitled to see them twice a month. After holding so, learned trial Judge dismissed the guardianship application subject to the conditions that the respondent No,1 would not contract second marriage and that the applicant would be allowed to see the children twice a month on Saturdays after furnishing surety. The applicant was allowed to move fresh application for seeking custody of his children if the respondent No,1 re- married or violated any condition of said order.
7. Aforesaid judgment was challenged by the applicant in Family Appeal No,17 of 1988 filed by him in the District Court, Karachi Central where it was heard and decided by 1st Additional District Judge on 30-4-1989. Learned Appellate Court agreed with the family Court that welfare of the minor children lay in their being with the respondent No,1 and dismissed the appeal. Hence this Constitutional Petition.
8. The applicant who argued the case personally contended that welfare of the minor children required that they should remain in his custody because the respondent No,1 being busy with a job was not in a position to look after the children. It was further argued that the respondent No,1 was working in Civil Aviation Authority office where male employees were in majority and this would have adverse effect on the respondent No,1 and on upbringing of the minor children. Applicant further argued that the respondent No,1 was not observing pardah while working in a male dominated office. The applicant admitted that he had remarried but contended that his financial position was far better than that of the respondent No,1 and that his children from the respondent No,1 would be more happy with him rather than with the respondent No,1. The applicant criticized the two judgments by which the Courts below had declined to restore to him custody of his children and argued that the Courts which dealt with his guardianship matter had misread the evidence and had taken erroneous view while arriving at the conclusion that the respondent No,1 would be better equipped to look after welfare of the minor children. It was next argued that view of the Courts below that due to his second marriage, giving custody of the minor children to their step-mother, would adversely affect welfare of the minors, was not correct as his second wife was not living with him and he had been visiting her occasionally in her parental house. Applicant challenged findings arrived at by the trial Court, to be based on conjectures and surmises. In this context attention was invited to the findings that the respondent No,1 has to feed her two daughters and herself only with maintenance allowance of Rs,400 per month and that the respondent No,1 would be better equipped to look after welfare of the minors. It was added that the trial Court and the Appellate Court had overlooked misdeeds and conduct of the respondent No,1. Applicant further argued that the respondent No,1 had removed the children from his custody without his consent and permission, she was not allowing him to meet the minor children although he was their natural guardian, and that she was disqualified from being given custody of the children because she had removed them from their permanent place of abode. The applicant contended that his right to custody of the minor children as their natural guardian was superior to that of the respondent No,1, as per Muhammadan Law and that action of the respondent No,1 in taking away the minor children against his wishes was without lawful authority and of no legal effect. The applicant referred to the relevant provisions of the Muhammadan Law and contended that if the wife deserts her husband and goes and resides at a distance from him, she loses her right of "Hizanat" because in such a case a father cannot exercise right of supervision over the minor children.
9. The petition was opposed by the respondent No,1, whose counsel Mr. Abdul Karim Siddique defended the impugned judgments. Learned counsel for the respondent No,1 conceded that a fresh application under Guardians and Wards Act could be filed if the previous one was dismissed for non-prosecution. He argued that the elder child had suffered brain tumour and she was operated upon at Jinnah Hospital (J.P.M.C) by Dr. Bhatti and that periodical checking went on in said hospital at Karachi. That the applicant has not paid any amount to the respondent No,1 for treatment of the elder child. It was alleged that the respondent No,1 was turned out by the applicant from his house at Tando Allah Yar, and at that time the parties had one child only, while the second child was born subsequently. It was next argued that there was absolutely no evidence if the minors were not being looked after properly by the respondent No,1. The elder child was said to have been admitted in a school of the choice of the applicant. The younger child was said to have been admitted in Ali & Ali Boys Secondary School, which was suggested by the applicant.
Learned counsel for the respondent No,1 controverted the allegation that the respondent No,1 had neglected her children but conceded that the respondent No,1 was Accountants Supervisor in Civil Aviation Authority at Karachi. It was argued that the respondent No,1 took the job, after being divorced, for the sake of proper maintenance of her children, whose expenses were more than Rs,400 per month per child. In respect of status of the family of the respondent No,1, her counsel said that while she was working as a Accountants Supervisor, her brother was serving in PIA., and her sister was a Doctor. It was lastly argued that the applicant was not paying anything for education of the minor children, except sending maintenance allowance, as ordered by the Court.
10. It is a settled question of law that controversial questions of fact are not to be adjudicated upon in a Constitution petition. In the case of State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tobacco Company Limited PLD 1983 SC 280, it was held that the Courts having plenary jurisdiction in the matter alone were competent to determine controverted questions of fact, which could not be adjudicated upon in Constitutional jurisdiction of the High Court. In the case of Lal Muhammad v. Mst. Gul Bibi and others PLD 1986 Quetta 185, the view taken was that writ jurisdiction normally would not lie against order of Court, tribunal or authority which have jurisdiction to decide such matters, but when any finding of fact is based on no evidence at all or on ignorance of material evidence or on consideration of inadmissible evidence, or on arbitrary exercise of jurisdiction, perversity or material illegality in the conduct of proceeding causing palpable injustice, in that case jurisdiction of this Court can always be invoked to rectify the wrong and injustice occasioned to a party, on the basis of admitted facts. In the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, it was held that it was not right to say that the Tribunal, which is invested with jurisdiction to decide a particular matter, has jurisdiction to decide it "rightly or wrongly" because the condition of grant of jurisdiction is that it should decide the matter in accordance with law. It was further held that a Tribunal when goes wrong in law, it goes outside jurisdiction conferred on it because the Tribunal has jurisdiction to decide "rightly" but not the jurisdiction to decide "wrongly". In view of this authority it has become necessary to briefly discuss evidence of the parties recorded by the trial Court.
11. In the trial Court the applicant examined himself and his father Farooq Ali and his cousin Sher Ali.
There was an effort to prove that it was Mst. Nousheen Murad who insisted for leaving house of the applicant, with her minor children, on the pretext of joining her parents at Karachi, on the occasion of Moharram. Admitted position is that Mst. Nousheed Murad has been divorced by applicant Laique Ali and the two minor children continue to live with her. Applicant Laique Ali Ex.1 claimed to be serving as a Bank Officer and getting Rs,2,000 per month as salary and Rs,1,800 as rent.
Respondent No,1 Nousheen Murad is admittedly serving in Civil Aviation Department at Karachi. The applicant Ex.1 deposed that behaviour of Nousheen Murad with the minors was not good and she was not looking after them properly and was not feeding them. He added that he tried to see his ailing daughter Bush Day but parents of the respondent No,1 did not allow him to see his ailing daughter and they misbehaved with him. Applicant claimed to be sending maintenance allowance to the respondent No,1 for the children. He sent three money orders to the respondent No,1 and produced their coupons as Exs.4 to 6. Applicant also produced in evidence copies of notices and replies exchanged between the parties, but their discussion is unnecessary, as they cannot resolve the point of "Hizanat". The applicant admitted in his evidence that he had contacted second marriage but his second wife was living with her parents at Azizabad. Applicant alleged that atmosphere in house of the respondent No,1 was not good because father of the respondent No,1 had four sons from his first wife whom he expelled from his house and then remarried and his sons were looked after by his uncle. The applicant alleged that outsiders visited house of the respondent No,1. The applicant admitted that his parents and his five brothers were living with him and they were established in their business. The applicant admitted that the minor children were born at Karachi, where they were living. He alleged that the minor babies were not getting education from any school. Applicant admitted that it was his duty to give education to his minor children but alleged that the respondent No,1 refused to give him custody of the babies for getting them admitted in School, and she refused to get the babies admitted in School. He admitted that the respondent No,1 was B. Corn., and that her father was a tailor. The applicant named Tariq and Majeed to be regular visitors to house of the respondent No,1, which he visited three/four times before filing the case. In his guardianship application, the applicant did not mention names of Tariq and Majeed. The applicant admitted that respondent No,1 was doing job after delivery of the second baby. Applicant produced his Salary Slip Ex.26 and Rent Slip Ex.27 Shabbir Ali, cousin of the applicant, deposed that respondent No,1 was taken away by her parents from Tando Allah Yar to Karachi with Bush-Day accompanying them against wishes of the applicant. That the other girl was born at Karachi. He added that father of the applicant owned house at Tando Allah Yar, but not at Karachi, where applicant's parents and other family members were living. That second wife of the applicant was living with her parents. P.W. Shabbir Ali who initially resided at Tando Allah Yar claimed to be living at Karachi since 1983. Responding to questions put by counsel for the respondent No,1 P.W. Shabbir Ali stated that there was no dispute between the parties at Tando Allah Yar, except that the applicant did not want the respondent No,1 and his daughter to leave for Karachi. He claimed to be knowing Tariq and Majeed without knowing their occupation or house numbers. Farooq Ali Ex.31, father of the applicant deposed that before issuance of orders of the Court he was not allowed to see the minors. He alleged that he saw Majeed and another boy stranger to him, sitting at the house of Nousheen Murad, whose father had died and who was living with her six family members including her mother aged 55/60 years. In his cross-examination Farooq Ali admitted that the applicant was previously living with him in house No,H-7 Al Asif Square, Karachi but after his marriage with Mst. Khatija he had shifted to another house mentioned in the rent agreement Ex.28 which was executed between him and the applicant, at the inception of the tenancy prior to August, 1986. He added that Khatija lived some times with the applicant and some times with her relatives in Karimabad. He admitted that the minors were in good state of health.
12. As against above evidence, respondent No,1 examined herself and he mother Sarfraz Begum Ex.D/6. After levelling allegations that the applicant did not pay for delivery expenses or for maintenance, Mst. Nausheed Murad Ex.D/ deposed that she defrayed all expenses in connection with treatment of he daughter Bush-day for brain tumour. That the applicant never visited her house to give any gift or cloth or any other article for the minor children. Respondent No,1 added that she was constrained to seek job of Accounts Supervisor in Civil Aviation Authority, Karachi on monthly pay of Rs,2,622 because of total neglection by the applicant to provide maintenance to her and to her children.
13. Respondent No,1 further stated that while she was on duty, her mother aged 62 years was looking after her minor children while on two days in a week she herself was looking after the children. In respect of status of her family, respondent No,1 stated that one of her sisters was a Doctor and one was a Government servant and both her brothers had passed B.Sc. And one of them was in P.I.A. While another was in Government service. In cross-examination she admitted that her sister Sameen was Upper Division Clerk in Postal Life Insurance and was divorcee with one son, who was also looked after by her mother. In respect of education of the minor children, respondent No,1 stated that she was Commerce graduate and was devoting time for their education at the house and that they are being imparted with Quranic education. She added that she was taking better care of the children who were being treated with love and affection by her family members. In the cross-examination, respondent No,1 admitted that minor children had not been admitted in the School by her, although on 18-5-1987 the Guardian Judge had ordered admission of both the children in School on an application moved by the applicant. She explained that the applicant had been intimidating that he would abduct the minor children from the School and hence she did not get the girls admitted in any School. Respondent No,1 further admitted that 90% of the employees of the Civil Aviation Authority are males, where she was working with males and she had to deal with her male colleagues officially. This statement, however, does not, by itself reflect upon character of the respondent No,1, because most of the ladies in big towns like Karachi take employment with males without any risk. She also admitted that she took education in the College where it was co-education. All the evidence shows that the respondent No,1 has been doing her best to look after the children. She also examined her mother Mst. Sarfraz Begum Ex.D/6 who claimed to be looking after the minors in absence of respondent No,1. She added that she was teaching Holy Qur'an to the elder daughter who had brain tumour and who was taking lessons from Holy Qur'an at her pleasure without being compelled. Mst. Sarfraz Begum was subjected to cross-examination, but she has not said anything which can show that the minor children are not happy in her house. She admitted that younger child had not been admitted to any School because she would he admitted after one or two years of education at home.
14. According to Section 352 of Muhammdan Law by D.F. Mulla (14 Edition) the mother is entitled to the custody of her male child until he has completed age of seven years and of her female child until she has attained the age of puberty and such right continues although the mother is divorced by father of the child, unless she marries a second husband, in which case the custody belongs to the father. Such right of the mother to custody of her minor children was recognized by the Supreme Court of Pakistan in cases of Shamim v. Niamat Ali (1981 SCM R 635), Mst. Feroze Begum v.
Muhammad Hussain (1983 SCM R 606), and Ghulam Hussain v. Mst. Bakhan (1985 SCM R 1917). In the last mentioned case the father of the minor had remarried but mother of the minor had not remarried and it was held that welfare of the minor lies in her remaining with the mother. In the case of Mst. Khalida Bahadur and another v. Malik Muhammad Ijaz Hussain (1980 CLC 1404), it was held that mother cannot be deprived of right of "Hizanat" given to her by the Muhammadan Law, unless the welfare of the minor so demands. It was also observed that father seeking the custody of the minor, has to demonstrate that the mother suffers from any disqualification for which it is not in the interest of the minor to stay with her. In the case of Fair. Bakhsh v. Mst. Sakina (1980 CLC 1989) the view taken was that the Courts are to presume that the welfare of the minor lies in her custody with the guardian recognized by the personal law and, therefore, while examining this aspect of welfare of the minor, the- Courts are required to examine if the guardian under the personal law of the minor is disqualified for any given reasons.
15. Section 354 of Mulla's Mohamedan Law states that a female including the mother, who is otherwise entitled to custody of a child, loses right of the custody, if she remarries a person not related to the child within the prohibitory degrees or if she goes and resides, during the subsistence of the marriage at a distance from the father's place of residence or if she is leading an immoral life or if she neglects to take proper care of the child. In the instant case the respondent No,1 has not remarried. She went and resided with her parents at a distance from her husband's place of residence, but her marriage with the applicant does not subsist. There is no allegation if the respondent No,1 is leading an immoral life or is a prostitute. Merely because she is serving in Civil Aviation Authority does not amount to her leading immoral life. Even visits of Majeed and Tariq to house of the respondent No,1 do not mean that they have any illicit connection with her, when she lives with six other members of her family including her mother.
16. The only question requiring consideration is whether the respondent No,1 neglects to take proper care of her children. Her evidence has already been discussed and it shows that she has been looking after her children in her house during her off time and that she is doing the service only for the sake of maintaining the children. In respect of her elder daughter Bush-day, respondent No,1 stated that she had remained under medical treatment from time to time due to brain tumour.
Cross-examination of respondent No,1 shows that she admitted that minor baby Bush-day had no brain tumour but she had a fall from the R.C.C. Stairs due to negligence of her family members. It appears that the trial Court while recording this evidence, omitted to write the word 'not' before the word correct. Otherwise respondent No,1 could not have said that due t negligence of her family Bush-day had fallen and she had no brain tumour. The was documentary evidence to show that Bush-day had brain tumour. All the evidence shows that the respondent has not neglected to take proper care of the children.
17. In light of the case-law cited in para 10 above, this Court has t determine whether the trial Court and the Appellate Court were justified is passing the impugned orders dated 23-11-1987 and 30-4- 1989 respectively. The evidence as discussed above shows that the Courts below did not fall into error by declining request of the applicant for custody of the minor children. The respondent has been given right by Muhammadan Law to have the two children in her custody, till they attain the age of puberty. The applicant has not been able to make out a case that the respondent No,1 has lost her right of "Hizanat" extended to her by the Muhammadan Law or that she is disqualified from continuing with custody of the minor children.
18. However, the Courts acting under the Guardians and Wards Act have taken a humane approach while determining the sensitive questions about custody of the minor children. Basically it is to be assumed in the absence of any evidence to the contrary that a child is as much dear to his mother as to his father. The applicant is natural guardian of his minor daughters, but his right to immediate custody of the children does not exist, as the minor children have yet to attain the age of puberty. However, the applicant cannot be left quite unconcerned with the welfare and well- being of his daughters. Right of the respondent No,1 to custody of the two daughters need not be disturbed but the applicant shall have right to get admitted in a School of his choice situated in the locality of house of respondent No,1, both or any of his daughters subject to his incurring cost of such education. Besides this, it would be in the interest of welfare of the two children if their custody on each Friday is handed over by the respondent No,1 to the applicant from 9-00 a.m. Till 6-00 p.m.
The Constitutional petition stands disposed of accordingly, with no order as to costs.