' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of two applications under section 25 of the Guardians and Wards Act (No, VIII' of 1890) one of which was brought by Mst. Shamim Akhtar respondent No,3 against Muhammad Ashraf petitioner seeking the restoration of the custody of minor Muhammad Rail from him and the other by the petitioner against respondent No,3 praying for the restoration of the custody of minor Sakhi Muhammad. The petitioner is the father of both the minors and respondent No,3 is his wife and mother of the said minoRs, The marriage tie between the patties is still intact.
2. On 14-9-1985 respondent No,3 filed the application under section 25 of the Guardians and Wards Act claiming the custody of minor Muhammad Rafi then aged about 2/1-2 years on the ground that he was of tender age and could not live without her mother and that he was not also mainaining good health. The other application under section 25 of the Guardians and Wards Act was filed by the petitioner on 8-10-1985 claiming restoration of the custody of Sakhi Muhammad minor aged 10 ycrs on the ground that the said minor was forcibly taken by respondent No,3 through intervention of the local police. He further alleged that the minor was not being looked after properly and had not been sent to any educational institution as his in-laws with whom his wife is putting up are not well-to-do with the result that she cannot bring up the said minor properly. Both the applications were consolidated and the learned Guardians Judge/Family Court, Sargodha took further proceedings in the application filed by respondent Mst. Shamim Akhtar against the petitioner. Both parties contested the applications of each other by filing written statements therein and they went on trial on the following issues:--
(1) "Whether the petitioner (Shamim) has no locus standi to move the present application? OPR.
(2) Whether it is in the interest and welfare of the minor to grant his custody to the petitioner? OPA.
(2-A) Whether the respondent (Muhammad Ashraf) is entitled to the custody of minor Sakhi Muhammad?" OPR.
(3) Relief."
' They led their evidence in support of their respective contentions. Respondent No,3 examined Abdul Aziz maternal uncle of the minors as A.W.1 and herself appeared as A.W.2. In support of his case Muhammad Ashraf petitioner examined Muhammad Riaz and Muhamamd Razman as R.Ws. 1 and 2 respectively and himself appeared as R.W.3.
3. By means of his Single judgment dated 20-4-1988, the Guardian Judge decided all the issues in favour of Mst. Shamim Akhtar and resultantly allowed her application and dismissed that of the petitioner. Under issue No, 2 it was held that the age of Muhammad Rafi minor was between three and four years and that accoridng to the personal law the mother of the minor is entitled to keep him in custody up to the age of 7 years and even thereafter it is not compulsory that his custody will automatically pass on to his father in that even at that juncture the guiding principle in the cause shall be the welfare of the minor. It was also held that Muhammad Rafi minor was not being properly brought up by the petitioner and therefore she was entitled to the restoration of his custody. Under issue No,2-A it was held that the petitioner had failed to substantiate his plea that Sakhi Muhammad minor was not being properly looked after by his mother and that his welfare lies in living with his real mother and minor brother.
4. The judgment dated 20-4-1988 was challenged by the petitioner before the appellate forum through two appeals and a learned Additional District Judge, Sargodha dismissed both the appeals on 26-11-1988. The findings on issue No,1 were not seriously agitated before the appellate forum and it upheld the findings of the Guardian Judge under issues Nos,2 and 2-A. The learned Additional District Judge did notice the lack of allegation of bad character against respondent No,3 by the petitioner and held that it was in the welfare of both the minors that they should live together with their mother. On the question of the entitlement of the petitioner to obtain the custody of Sakhi Muhammad minor as he was more than 7 years of age, it was observed that the paramount consideration was his welfare and that his welfare lies in his being in the custody of his mother.
5. This petition was filed on 24-1-1989 and it was specifically averred that Sakhi Muhammad minor was more than 7 years and that Muhammad Rafi minor was aged about 6 years then.
6. Learned counsel for the petitioner has riased the following contentions:--
(1) Firstly, that both the minors are more than 7 years of age and therefore the petitioner is entitled to their custody in preference to respondent No,3.
(2) Secondly, that the marriage tie between the parties is extant and both the Courts below are in error in porceeding with the resolution of the dispute in relation to the question about the custody of the minors without considering the said circumstance and the additional fact that petitioner had obtained a decree for restitution of conjugal rights against his wife and without complying with the same she is denuded of her alleged right to continue with the custody of Muhammad Rafi minor even up to the age of seven yeaRs,
(3) Lastly, that Muhammad Rafi minor has also crossed the age of 7 years during the pendency of this petition and there remains no impediment in the way of the petitioner in continuing with his custody.
' Contrarily, it is argued on behalf of respondent No,3 that the present petition is liable to be dismissed as a concurrent finding of fact cannot be made the subject-matter of a petition under Article 199 of the Constitution. According to the learned counsel, the appreciation of the point in relation to the welfare of the minors has been correctly resolved by the Courts below and nothing would turn on either the fact that Muhammad Rail minor has now attained the age of 7 years or the admitted position that Mst. Shamin Akhtar respondent has refused to live with her husband even after his suit for restitution of conjugal rights was decreed and her appeal thereagainst was also rejected by Additional District Judge, Sargodha on 10-10-1988 i,e, about six weeks prior to the dismissal of petitioner's appeal in the guardianship-causes by Additional District Judge, Sargodha on 26-11-1988.
7. It appears that the parties are at variance with each other on the question of the welfare of both the minors lying in their custody being with either of the spouses. The criticism offered on behalf of respondent No,3 to the effect that both the Courts below have concurrently resolved the question- of fact in her favour with the result that the same cannot be interfered with in these proceedings, can be considered in that context. The gravamen of the dispute between the parties reflected in issues Nos,2 and 2-A could be resolved only by considering the evidence produced by them before the learned Guardian Judge. Misreading of material evidence on the record and/or failure to consider the same altogether will render the judgments of the Courts below amenable to interference in these proceedings. The learned Guardian Judge failed to consider the effect of the statements of Abdul Aziz and Mst. Shamim Akhtar in relation to the case of the petitioner that the marriage tie is till subsisting and that his wife had left both the minors with him and that she filed the application under section 25 of the Guardians and Wards Act in relation to Muhammad Rail minor after obtaining the custody of Sakhi Muhammad minor through the intervention of local police and that too after he had instituted a suit for restitution of conjugal rights against her. Abdul Aziz A.W.1 had stated that at the time of desertion of his sister Mst. Shamim Akhtar by the petitioner, the minors remained with the petitioner and that: {{URDU TEXT}} ' In his cross-examination this witness admitted that his sister applied for the restoration of custody of Muhammad Rafi minor after the petitioner had instituted a suit for restitution of conjugal rights against her. Mst. Shamim Akhtar stated as A.W.2 that Muhammad Rafi minor was snatched by the petitioner from her and that the petitioner had filed a suit for restitution of conjugal rights against her but she was not aware whether it was instituted prior to her application under section 25 of the Guardians and Wards Act or thereafter. The petitioner had appeared in the case before the learned Guardian Judge as R.W.3 on 10-2-1987 and 26-10-1987. He had stated on 10-2- 1987 that both the minors were left by the parents of his wife at his house when they took her with them and that Muhammad Rafi minor is still with him who attends school and mosque now. In relation to Sakhi Muhammad minor he made the following statement on 26-10-1987:- {{URDU TEXT}} ' Muhammad Ashraf petitioner was not cross-examined on these aspects/points in his statements dated 10-2-1987 and 26-10-1987 in relation to Muhammad Rafi minor and Sakhi Muhammad minor respectively. Both the Courts below are in error in not considering the material evidence on the record in arriving at the conclusions at their respective ends.
8. There is considerable force in the contentions of the learned counsel for the petitioner that the application of respondent No3 seeking custody of Muhammad Rafi minor was in the nature of a counterblast to petitioner's suit for restitution of conjugal rights and that her residence in her parental home even after the resolution of petitioner's suit in his favou; and of her appeal against her by Additional District Judge, Sargodha on 10-10-1988, have been illegally ignored by Courts below. It appears that both the Courts below were not congizant of the facts that the marital tie between the parties was intact and that Mst. Shamim Akhtar had no justification to insist upon continuing with her residence at her parental home in preference to marital abode. Learned counsel for respondent No3 was unable to support her case on any discoverable principle in Shariah that a wife is entitled to the custody of her male children after they have attained seven years of age.
9. There is no cavil with the proposition that rules of Islamic Law relating to guardianship and custody of the minors are merely the application of the principle of benefit of the minors to diverse circumstances and that the welfare of the minors remains the dominant consideration in all such cases. The welfare of a minor is to be presumed to lie in custody by a person entitled B to it under Personal Law of minor unless facts leading to contrary inference are proved. See Mst. Faroze Begum v. Lt.-Col. Muhammad Hussain (1983 SCMR 606), Muhammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lahore 73) and Mst. Niaz Bi v. Fazal Illahi and another (PLD 1953 Lahore 442). I find that the peculiar facts and circumstances of this case have not been kept in C view by the learned Guardian Judge and the learned Additional District Judge, Sargodha while rendering the orders impugned herein.
10. It is admitted position between the parties that Muhammad Rafi minor has attained the age of seven years during the pendency of the proceedings here. The entitlement of the petitioner to obtain the custody of Sakhi Muhammad minor from respondent No3 and to continue with the custody of Muhammad Rafi minor, both who are more than seven years of age, cannot be denied.
This unfortunate litigation between the parents of both the minors has obviously stood in the way of the parties putting up together and looking after their kids in unison with each other. The fact that the petitioner sought restitution of conjugal rights through a suit speaks a lot about his bona fides in impressing upon his spouse the benefits to accrue to all concerned. Even the mother of the minors has not sought dissolution of her marriage with the petitioner and these appear to be happy findings for the future of the disrupted family.
11. For all that has been said above, this petition is accepted, the judgments dated 20-4-1988 and 26-11-1988 are declared to have been passed without lawful authority and of no legal effect with the result that application of respondent No3 under section 25 of the Guardians and Wards Act shall stand dismissed and that of the petitioner seeking the restoration of custody of Sakhi Muhammad shall be treated as allowed. There shall be no order as to costs.