1. ' Dispute requiring determination in the writ petition between the parents of a minor child is about their right to his custody. The Courts below have resolved it in favour of the mother and held that it shall be in his interest and welfare to be with her. Aggrieved of this dispensation, the father has come up in a petition under Article 199 of the Constitution to this Court for setting aside of the orders passed by the Courts below against him. It is contended on his behalf that issue of welfare of the minor child had not been correctly and satisfactorily decided in the Courts below.
2. Parties i.e. Walayat All petitioner and Mat. Khalida Bibi, respondent No,1, were married together on 15-2-1985. A male child named Muhammad Azeem was born to them from this marriage in June, 1986. In August 1987, when the child was hardly one and a half years, respondent No,1 was shown to have been turned out of his house by the petitioner and custody of the minor child withheld. On 24- 11-1987, respondent No,1 brought a petition under section 25 of the Guardians and Wards Act for regaining the custody of her minor son from the petitoner. Petitioner filed a reply and controverted the allegations in the petition. It was stated that respondent No,1 had left his house on her own by leaving the child behind to be looked after and cared for by him. Allegations of immorality were also levelled against respondent No,l. It was further stated that the interest and welfare of the child required that his custody must remain with him.
2. ' Guardianship petition was tried on following issues:-
(1) Whether the petitioner has moved this application with mala fide intention? OPR
(2) Whether the petitioner is estopped by her act and conduct to file this application? OPR
(3) Whether the petitioner is entitled to the custody of minor son?' OPA.
(4) Relief ' Upon analysis of oral evidence given by the parties touching on the welfare of the minor child and their respective entitlement to hold his custody, learned Guardian. Judge found for respondent No,1 on 28-11-1989 and directed the petitioner to hand over actual custody of the minor to respondent No,1. In appeal, this decision was maintained by learned District Judge, Sheikhupura, on 15-5-1990 and the appeal filed by the petitioner dismissed with costs. It may be noted for reference that during the pendency of appeal before the lower Appellate Court, petitioner had applied to take the plea that he was a Shia by faith and under the tenets of Shia Law, he was entitled to the custody of his male child after attainment of his two years age and in support of his faith had appended some certificates from persons professing that faith. Obiously, introduction of this new plea, which had not been earlier advanced either in the written statement filed by the petitioner or evidence given by him was seriously opposed by respondent No,1 and also learned lower Appellate Court did not entertain it for consideration, being a belated thought. Matrimonial-tie between the parties has since been snapped in the year 1987/88. Respondent No,1 has not yet remarried but the petitioner has taken a second wife on 23-31990 and is residing with her. Predominent consideration governing custody of minor children is their welfare. Their Personal Law is a relevant factor for assisting the question of their welfare. Though the initial presumption of welfare lies in favour of the person entitled to hold custody of the minor under A his Personal Law, but the presumption is rebuttable by countervailing factors and circumstances pointing out welfare in a different direction. Relations between the parents of the minor were and are severely strained. Petitioner accused respondent No,1 of immorality and infidelity but it was a usual abuse at a time when the petitioner had no stake in hurling it at her. Apart from his oral word, there was no proof of the invectives. Now that respondent No,1 had been effectively divorced the petitioner had not much to lose in painting her black and charging her for impiety and lack of morality. Mere allegations were not a proper substitute for proof of what was contained in them. Petitioner is a mason by profession. Naturally, his business required his frequent absence from the house and in that eventuality, the child was made to fall firstly to the care of ageing paternal-grandparents and after remarriage of the petitioner may have to look to and find himself in the company of a stepmother, whose treatment may prove proverbial. As against this atmosphere, minor was being entrusted to the custody of his real mother for whose love, affection and care, possibly there was no earthly substitute. Rare exceptions aside, mother is symbol of sacrifice for her children. It is true that respondent No,1 had no stable means of livelihood and earned subsistence from stitching of cloths by a sewing machine. She is also assisted by her parents and brothers with whom she was putting up. However, impecuniousity and want of monetary resources in themselves must not work as a serious disqualification for a real mother to keep her child close to her bossom and rear him up under her own umbrella aided by the father, who is clearly obliged under law to provide. Necessary economic cover in that direction. During the hearing of writ petition, respondent No,1 was present in Court. She informed the Court that she did not intend to remarry for the sake of her minor son and upon gaining his custody would admit him to a school for giving him proper education. When the minor is placed between real mother on one side and a father remarried to a stranger lady and then the question of his welfare is examined to discover as to which place shall be conducive to his better future, the scales tilted in favour of real mother only. In the present case, the minor is of tender years. His exposure to a stepmother, who may have her own children in the coming years and develop a conflicting interest shall not be conducive to his welfare. Paternal-grandparents shall not be able to supply the deficiency.
3. As said above, the welfare of the minor is of paramount importance. Both the learned lower Courts below upon reviewing the facts of the case came to hold the view that it was in the interest and welfare of the minor to return to the custody of his real mother. This agreed finding on a question of fact is based upon proper appreciation of record and did not suffer from its misreading or its non- consideration. Every item of record had been weighed and given effect to in the final conclusion.
4. Jurisdiction of the Courts below to hear and decide was not denied. If that is so, conclusions arrived at could not be described as without jurisdiction or without lawful authority. Merely that a different view of record could possibly be taken by the Court reviewing it third time, could hardly be taken as a good ground for interference in special jurisdiction. There is always a room for difference of opinion and any number of times a matter is examined, possibility of holding a different opinion could not be excluded. But the real question would be, whether a reasonable mind upon an honest review of record could have come to such a conclusion and if it could, there is no need to cause interference. Despite an agreed finding on question of welfare of the minor for entrustment of his custody to the real mother, I have myself looked into the record and the rekr, ant circumstances touching on the welfare of the minor child and have come to the same conclusion as the learned lower Courts had come to. In my opinion, the learned Courts below were quite right when they said that the minor was to be better looked after and cared for by his mother. In this view of the matter; there is no reason for disagreement. Consequently, writ petition is dismissed with no order as to its costs in this Court.
5. Before concluding, I must observe that the petitioner as a father has every right to see and meet with his son to prevent possible estrangement between them. Therefore, if advised, it shall be open to the petitioner to request learned Guardian Judge, Ferozewala, to make suitable arrangements for him in that behalf.