' Mst. Zahida daughter of Inayat Khan petitioner No,1 before this Court, was married to the respondent on 21-4-1981. Out of the wedlock a son namely Yasir Shahid, now aged about 11- 1/2'years was born. The spouses lived together as husband and wife till June, 1990, when according to the petitioner No,1, she was compelled to leave the house of the respondent alongwith the minor child. It is stated in the reply to the petition under section 25 of Guardians and Wards Act filed by the respondent that after leaving the house of the respondent, she lived with her sister in Satellite Town, Rawalpindi uptill April, 1991. The petitioner was divorced by the respondent on 27-6-1990. The respondent filed application under section 25 of the Guardians and Wards Act against the petitioners seeking restoration of the custody of his minor son. This application was contested.
' On the basis of the pleadings of the parties, learned Guardian Judge/Judge Family Court, who was trying the petitioner settled following issues:--
(1) Whether the respondent No,2 is not a necessary party, if so, its effect? OPR.
(2) Whether it is in the welfare of the minor if the custody is handed over to the petitioner? OPP
(3) Relief.
' Evidence was led by the respondent but in spite of sufficient opportunities given to the petitioners to lead evidence, no evidence was produced by them, hence, their evidenee was closed vide order dated 14-7-1992. Ultimately, on the basis of the evidence produced in the case learned Guardian Judge/Judge Family Court vide order dated 15-7-1992 accepted the application and directed restoration of the custody of the minor to the respondent. Another development, which has taken place during the interregnum is that the petitioner No,1 married Group Captain Fahmeed Iqbal on 8-4-1992 and is now living with him alongwith the minor in his house at Mianwali. A son of the second wedlock aged about 4 months has also born to her.
2. Aggrieved of the order dated 15-7-1992, the petitioners filed appeal which has been dismissed by Mr. Farrukh Latif, learned Additional District Judge, Rawalpindi, vide order dated 19-10-1992.
' Through this Constitutional petition, orders of restoration of the custody passed by the learned Guardian Judge/Judge Family Court confirmed in appeal, dated 15-7-1992 and 19-10-1992 have been challenged by the petitioneRs,
3. M/s. Anwar Baig Mirza and Mumtaz All Mirza, Advocates have appeared on behalf of the petitioners whereas M/s. Habibul Wahab Al-Khairi, Nasir Saeed Sheikh and Malik Rabnawaz Noon, Advocates have appeared on behalf of the respondent. Before proceeding to hear arguments in the case, I recorded the statement of minor, who is present in Court, which is reproduced under:-- "My name is Yasir Shahid. I am aged 11-1/2 yeaRs, I am studying in 6th class in presently, I am living with my mother, who is tattering with my personal as well as educational needs. I do not write letters to my father. However, my mother advises me to write letter to my father. My father does not come to our house to see me. Neither he has ever sent gifts, etc., I do not want to go to my father. I do not like him."
4. In support of this writ petition, Mr. Anwar Baig Mirza, Advocate learned counsel for the petitioners has raised the following contentions:-
(i) that the order dated 14-7-1992, whereby the evidence of the petitioner was closed by the learned Guardian Judge, is illegal and without a lawful authority, inasmuch as the date on which the evidence had been closed was not a date fixed on the request of the petitioners and therefore, the provisions of Order XVII, Rule 3, C.P.C. Are not attracted, and hence, the whole subsequent proceedings which culminated in passing of the impugned orders are vitiated.
' In support of his argument, learned counsel has placed reliance on cases of Syed Shaukat Abbas v. Mst. Bushra Rani and others (PLD 1982 Lah. 281), Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434), Iqbal v. Mst. Jinan (PLD 1991 SC 727), Sahib Bibi v. Guardian Judge, etc. (1987 CLC 807) and Mst. Naseem Sughra v. Ghulam Hussain and 2 others (1988 CLC 2515); ' that in the written statement an objection relating to the territorial jurisdiction of the trial Court had been raised but the learned trial Court neither framed an issue regarding territorial jurisdiction of the Court nor had rendered a lawful fmding thereon and as admittedly, the minor'was not living within the territorial limits of the learned trial Court at the time of filing of the petition, hence the impugned orders are illegal and without a lawful authority. It is contended that framing of issue of jurisdiction was necessary and as the issue goes to the root of the case, non-framing. Thereof has prejudiced the case of the petitioneRs, Learned counsel has relied upon the following cases in support of this argument. Mst. Javid Sultana v. Aman Ullah Khan and others (1985 CLC 2851), Mst.
Hafizan v. Muhammad Yasin and 2 others (1985 CLC 1448), Aziz-ur-Rehman, v. L.D.A. (1985 CLC 2028), Gul Baz v. Abdur Raziq (PLD 1985 Pesh. 38), Sh. Muhammad Rashid v. Mst. Zarnigar Qaisar Sheikh (PLD 1980 Lah. 61);
(iii) that as one-sided evidence has been recorded in the case, the question of welfare of the minor cannot be properly decided in exercise of parental jurisdiction and, therefore, the case requires remand in the interest of justice so that the petitioners as well could lead evidence in rebuttal;
(iv) that it is in the welfare of the minor lies to remain in the custody of the petitioner as mother's lap is "cradle of God" and he is being properly brought up and educated by his mother. Reliance has been placed on unreported case "Lt.-Col. (Rtd.) Ijaz Ali Khan v. Shaheen and others" (1993 CLC 2088), decided by me on 12-5-1993.
5. In the point-wise elaboration of his arguments, the learned counsel has taken me through the order-sheet and has pointed out that although after close of evidence by the respondent, the case was adjourned 13 times, yet only on three specific dates the petitioners failed to produce evidence on which dates, there was lapse on the part of the petitioners to produce evidence but the same was also beyond control. A brief resume of the proceedings taken and orders passed is reflected in the next paragraph.
6. Interim order dated 16-3-1992 which was fixed for evidence of the petitioner shows that the case was adjourned on that date as it was stated on behalf of the petitioners that some relatives of the witnesses have since been abducted, therefore, could not appear in Court. On 28-3-1992, the case was adjourned on the ground that the petitioner's evidence was not present. On 4-6-1992, the witnesses of the petitioners did not appear as they were stated to be employees of Air Force Department and they could not get leave to appear in Court.. It may be stated here that the witnesses were not summoned for the said date. On 17-6-1992, the evidence of the petitioners was not present and hence could not be recorded. The case was listed on 22-6-1992 on which date it is mentioned in the order-sheet that the proceedings have been stayed by the superior Court. The file was received back by the Court of learned Guardian Judge on 4-7-1992, on which date the case was adjourned for evidence of the petitioners on 14-74992. It is specifically mentioned in the order that it is going to be the last date. On 14-7-1992, the petitioners did not produce evidence nor herself appeared as her own witness. It was stated on her behalf that she has gone to Murree alongwith the child and she could not return, therefore, the evidence could not be produced.
Learned trial Court did not adjourn the case, closed the evidence and proceeded to fix the case for arguments on 15-7-1992. Order dated 14-74992 is reproduced as under:-- {{URDU TEXT}} ' On 15-7-1992, again a request was made for grant of adjournment which was refused and it is specifically stated in the order that the case has already been ordered to be heard day to day.
Consequently, the application under section 25 of the Act was accepted vide order dated 15-7- 1992. Order dated 15-7-1992 is reproduced as under:- {{URDU TEXT}} ' According to the learned counsel, the above narrated facts do not reflect wilful default on the part of the petitioners to produce evidence and at any rate as 14-7-1992 was not the date fixed on the request of the petitioner, the evidence could not have been closed on that date. Learned counsel, however, has conceded that the principles of Civil Procedure Code are not applicable to the proceedings before the Family Courts as the procedure followed in guardianship matters is to be as provided under Family Courts Act, 1964.
7. Elaborating his second proposition, learned counsel contends that although the spouses have been living in Rawalpindi at the time when they separated, yet at the time of filing of the Guardianship petition under section 25, the minor and the petitioners were living in Islamabad, hence the petition for restoration of custody was not competent in the Court of learned Guardian Judge, Rawalpindi as the minor had not been removed forcibly from the custody of the respondent from Rawalpindi, and, at any rate the question of mode of removal of the minor was a question of fact which could only have been decided after framing of issue and recording of evidence. It is contended that if it is held that the minor was not removed forcibly against the wishes of the respondent, the only Court which shall have jurisdiction in the matter will be the learned Guardian Judge at Islamabad and not the learned Guardian Judge at Rawalpindi. While confronted with paragraph 1 of the written statement filed by the petitioners, learned counsel has conceded that the stand taken in the written statement by the petitioner No,1 is that she was compelled to leave the house of the respondent due to strained relations and thereafter she came to live with her sister in Satellite Town, Rawalpindi, where she lived uptill April 1991. Application under section 25 has been filed in May 1991 on which date admittedly the minor was living in Islamabad, hence in spite of the facts narrated in the written statement, petition at Rawalpindi was incompetent.
8. Elaborating his third and fourth proposition, learned counsel has contended that the question of restoration of the custody being relatable to the welfare of the minor hence, merely because the petitioner has failed to produce evidence is not sufficient to direct restoration of the minor to the father inasmuch as without there being a full picture of the whole situation before the Court this question could not have been decided and hence this Court being a Court of parental jurisdiction should exercise its inherent powers and remand the case to the learned trial Court for recording of evidence of the petitioners as well and thereafter to decide the case after considering the totality of evidence. It is contended that the minor is being brought up very nicely by his mother and is studying in 6th Class of PAF Intermediate College, Mianwali. As per his statement, he does not like to go to his father, whom he does not like. He is getting motherly love and affection of which he will be deprived of, if he is restored to the custody of the respondent, and, hence will suffer irreparable loss. Hence, his welfare lies in remaining in the custody of his mother whose lap has been described as "craddle of God Almighty".
9. As against the above arguments addressed by the learned counsel for the petitioners, learned counsel for the respondent has vehemently argued that the minor is admittedly more than seven years of age, therefore, Hizanat as per paragraph 357 of Mulla's Mahomedan Law vests in the respondent who is his real father. It is contended that law presumes welfare of the minor to remain in the custody of a person who is entitled to Hizanat under Islamic Law and, therefore, the two learned Courts below have rightly directed restoration of the custody of minor to respondent. It is contended that the evidence of the petitioners has rightly been closed by the learned trial Court inasmuch as the petitioners failed to produce evidence although lot many opportunities were allowed to them to produce evidence and as the procedure as provided under Civil Procedure Code in stricto senso is not applicable to the preoceedings in Guardianship matters, the order of closure of evidence refusal to adjourn the case is quite lawful. Reliance is placed in this behalf on law declared in case of "Syed Shaukat Abbas v. Mst. Bushra Rani and another" (PLD 1982 Lahore 281). Learned counsel has further contended that no issue regarding territorial jurisdiction of the Court was required to be framed in this case in view of the facts stated in paragraph No,1 of the written statement and at any rate no prejudice has been caused to the petitioners for non-framing of the issue with regard to the territorial jurisdiction of the Court inasmuch as her own case in the written statement is that she was compelled to leave the house of the respondent of her own alongwith her minor child and has been living in Satellite Town Rawalpindi up to April 1991. Keeping in view the proximity of time when the application was filed, it cannot be said that the minor was not living within the territorial limits of Guardian Judge, Rawalpindi at the time when the petition was filed. It is further contented that even otherwise the minor was admittedly removed from the custody of the respondent without his consent from Rawalpindi, hence the Court of learned Guardian Judge Rawalpindi had the jurisdiction to try the application as the cause of action accrued to the petitioners within the territorial limits of that Court. Learned counsel has further contended that there is no cavil with the proposition that while deciding the question of custody of the minor, his welfare is to be the supreme consideration. However, in this case, it- is in the welfare of the minor to be restored to the custody of his father. It is contended that admittedly, the petitioner had married a stranger and is living with him alongwith the minor. A son has born out of the second wedlock. It will not at all be in the welfare of the minor to allow him to live in the house of his step-father and to be at his mercy. Learned counsel has placed on record a certificate mark `R.W/1' showing that Yasir Shahid minor who is stated to be a student of PAF Intermediate College, Mianwali is not on the strength of the College and, therefore, according to the learned counsel it is being wrongly contended by the petitioner that the minor is studying in the said Institution. The respondent who is present in Court on my query has stated that in his house, his auntie and a sister is living and he intends not to remarry and wants to educate his son in some good institution and has already made arragements in this behalf for his admission in "Beacon House" which is a renowned educational Institution. He further states that he is Grade-18 Officer and is well to do person and wants to devote full attention towards best brought up and education of the minor.
Lastly, it is contended that the respondent being a natural guardian of the minor, order of restoration of the custody of the minor passed by the Special Tribunals of exclusive jurisdiction cannot be said to have been passed without a lawful authority and hence cannot be set aside in exercise of the Constitutional jurisdiction of this Court.
10. In reply to the arguments addressed by the learned counsel for the respondent, learned counsel for the petitioners have reiterated the arguments addressed earlier and has placed on record a certificate issued on 8-6-1993 Mark A.W./1 showing that Yasir Iqbal son of Group Captain Fahmeed Iqbal is a registered student of PAF Intermediate College, Mianwali. From this certificate, learned counsel for the petitioners wants to show that for the purpose of getting benefit for the minor, he has been got admitted in PAF Intermediate College, Mianwali in a fake name and has been shown as a son of his step-father Fahmeed Iqbal. It is clarified that it has been done with permission of the Authorities, and, therefore, the contention of the learned counsel for the respondent to the effect that the minor is not studying in the said College is not correct. The factum of second marriage of petitioner No,1 as well as birth of a son from the second husband is admitted by the learned counsel for the petitioneRs,
11. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly, the minor son of the parties is aged about 11-1/2 yeaRs, As per provisions of paragraph 357 of Mulla's Mohemmadan Law, Hizanat of the minor vests in the respondent who is his real father and the natural guardian. The petitioner No,1 has re-married a stranger and is now living in his house. She has a son from the second husband. Minor has been wrongly shown as real son of petitioner's second husband in the College record for the purpose of getting benefits for minoRs, It means that the minor shall be brought up in the house of step-father without having the name of his real father in his educational record. The minor today has stated before me that he does not write letters to his father although his mother advises him to do so. He has shown hatred towards his father. It appears that while living in the house of his step-father, he is being brought up not as respondent's son but as his step-father's son. This fact is going to create lot many complications in future. There is a strong possibility that the minor will acquire hatred and affixed aversion towards his father and most probably will even forget his father. The petitioner herself has no means of livelihood. She is living with her second husband. The minor living in that house shall not get fatherly love and affection and care. His admission in the college with wrong parentage for the purpose of getting some financial benefits allegedly for his benefit speaks volumes about the mind of his step-father, with whom he is supposed to live in case he is not immediately restored to the custody of his real father and is a pointer to the training which the child will get at this tender age. Calling the name of a person as son of somebody else than that of his father is a great sin and has been prohibited by specific injunctions of the "Holy Qur'an" as is clear from the following verse of Surah Al-Ahzab:- {{URDU TEXT}}
4. Allah hath not assigned into any man two hearts within his body, nor hath He made your wives whom ye declare (to be your mothers) your mothers, nor hath He made those whom ye claim (to be your sons) your sons. This is but a saying of your mouths. But Allah sayeth the truth and He showeth the way.
5. Proclaim their real parentage. That will be more equitable in the sight of Allah. And if ye know not their fathers, then (they are) your brethren in the faith, and your clients. And there is no sin for you in the mistake that ye make unintentionally, but what your hearts purpose (that will be a sin for you). Allah is Forgiver. Merciful. .......... Translation by "Marmaduke Pickthall"
Translation in Urdu and comments by Maulana Abul A'ala Maudoodi from Tafhim-ul-Qur'an, Volume IV, at pages 69 and 70. {{URDU TEXT}} ' (Translation in Urdu as well as comments have been reproduced from the Book "Tafheem-ul- Qur'an" by Maulana Abul A'ala Maudoodi Vol.IV), Consequently keeping in view the aforementioned Qur'anic injunction allowing keeping the minor in the custody of the mother, where he will be brought up as son of Group Captain Mr. Fahmeed lqbal, who is not his real father will amount to permitting violation of the aforementioned Qur'anic Injunctions.
' As Hizanat admittedly vests in the respondent who is real father and natural guardian of the minor, there is a presumption to the effect that welfare of the minor shall lie in his living with his father. There is no cavil with the proposition that motherly love and affection is also necessary for brought up a minor, but in case of a minor son when he is entering grown up age group direct supervision, care, custody and guidance by the father is necessary to make him a real male human being, to successfully enter the arena of the competitive world and has to leave the "craddle" which is only possible if he is brought up and educated under the direct supervision of his father. Admittedly, the respondent is well placed in life and is in a better position to maintain and educate his minor son. He has made a statement before this Court that he has already arranged admission of the minor in "Beacon House" which is definitely a very good educational Institution.
Respondent is living in the Capital whereas the minor is presently living in Mianwali and shall naturally have to go on shifting with his step-father wherever he is transferred in an environment where he will have to watch and digest the sharing of love and company of his mother by two strangers i,e, step-father and step-brother. Hence, leaving him in the house of his step-father shall be an act of cruelty as held by me in case of `Lt.-Col. (Rtd.) Ijaz Ali Khan' referred to supra, in which case presence of a step-mother in the house of father was taken into consideration as one of the strong circumstance for refusing restoration of custody of grown up minors to c the father. Keeping in view the overall circumstances of the case, I am of the view that the two Courts below have rightly held that the welfare of the minor lies in the restoration of his custody to the respondent.
' Argument of the learned counsel for the petitioners to the effect that evidence of the petitioners has illegally been closed is without force. Record shows that lot many opportunities were given to the petitioners to produce evidence which was not produced on the pretexts, which cannot be said to be beyond the control of the petitioneRs, On various dates adjournment was sought on flimsy grounds, and, therefore, there was no alternative for the learned trial Court but to refuse to adjourn the case on 14-7-1992, and close evidence of the petitioneRs, It is a guardianship matter. Procedure to be followed in these matters as provided under the Family Courts Act, 1964 and that C.P.C. As held in case of Ihsanur Rehman v. Mst. Najma Parveen (PLD 1986 SC 14) is intricate and lengthy procedure as provided in the Civil Procedure Code has intentionally been excluded by the Legislature with a view to get matrimonial and guardianship matters decided expeditiously.
Consequently, the discretion excercised by the learned trial Court which has been affirmed in appeal, cannot be said to be arbitrary or whimsical, and, hence, is not liable to be interfered with in exercise of Constitutional jurisdiction of this Court, particularly when keeping in view the admitted facts and circumstances of the case an order of restoration of the custody appears to be just and lawful. No useful purpose will be served by remanding the case as the evidence recorded by the trial Court, facts admitted and material placed before this Court is sufficient to decide the matter in issue. There is no cavil with the law declared in the judgments cited at the bar, yet does not advance the case of the petitioners keeping in view the facts of this case. Therefore, no interference with the impugned orders is called for on account of the closure of the evidence of the petitioners by the learned trial Court.
Argument of the learned counsel for the petitioners to the effect that issue regarding territorial jurisdiction has not been framed and hence the case of the petitioners has been prejudiced is also without merits. In paragrapah I of the written statement it is not the case of the petitioner that she removed the child with consent of the respondent. She has admitted that she has been living in Rawalpindi alongwith the minor immediately before the time when the petition was filed. Cause of action admittedly has arisen within the territorial limits of Rawalpindi, therefore, the learned Guardian Judge, Rawalpindi has jurisdiction to try the application and if no formal issue has been framed, it will not make any difference inasmuch as in view of the admitted facts and circumstances of the case, I am of the view that the learned Guardian Judge Rawalpindi had territorial jurisdiction to try and decide the application. Even otherwise, technicalities cannot be allowed to stand in the way of doing justice, if possible on merits. In case of Master Musa Khan and 3 others v. Abdul Hague and another (1993 SCMR 1304) at page 1306 of the report it is held as under:-- "It is an admitted position that the appellant's suit stands dismissed till the present stage on account of its dismissal for non-prosecution and further on account of the dismissal of the application for restoration. The Board of Revenue in its revisional jurisdiction while setting aside the appellate order of the Additional Commissioner no doubt had taken into account some technical/legal features which were helpful to the appellants in so far as the restoration of the suit is concerned. But in pith and substance there was one underlying reason of merit as well in so far as the order of remand is concerned. It is that, the appellants' case had not been heard and decided on merits. It is one of the cardinal principles that so long as substantial justice can be done and there is no serious technical or legal impediment, the decision of controversies on merits stands at a much higher level than the disposal on the basis of legal technicalities and technical baRs,"
' This is writ petition. Two Courts of exclusive jurisdiction have concurrently held that the respondent is entitled to the restoration of the custody. The impugned orders, therefore, cannot be said to be illegal and without a lawful authority and are not liable to be interfered with in view of the law declared in cases of Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139) and Muhammad Sharif and another v. Muhammad Afzal Sohail and others (PLD 1981 SC 246).
' Resultantly, I see no force in this writ petition, hence, the same is dismissed, with no order as to costs.