' Through this Constitutional petition the petitioner has assailed the legality of the orders dated 20- 4-1992 and 10-2-1993 passed by respondents Nos.2 and 3 respectively.
2. Briefly stated the facts of the case are that Musarrat Ahmad Dar, the petitioner contracted marriage with Mst. Nighat Ghazala, respondent No,1 on 3-12-1983. Out of the wedlock a daughter named Mst. Rabia Mussarrat Dar was born on 16-12-1984. The spouses could not live together happily whereupon temporary separation took place between them in November, 1985. However, they reconciled in the year 1987 but again respondent No,1 left the petitioner's house on 18-9-1988.
The minor was brought up by Mst. Robina, the real sister of the petitioner.
3, On 24-11-1989, respondent No,1 filed an application in the Family Court/Guardian Judge for custody of the minor. It was resisted by the petitioner who filed his reply in the Court on 23-1-1989.
On the pleadings of the parties, the trial Court framed the following issues:---
(1) Whether the welfare of the minor lies in the custody of the petitioner? OPA.
(2) Relief.
' In support of her case respondent No,1 produced Mirza Saleem, A.W.1, Muhammad Sharif Bhatti, A.W.2 and herself appeared as A.W.3. She produced copy of the birth certificate of the minor Exh.A.1 and closed her evidence. On the other hand, the petitioner produced Iftikhar Ahmad R.W.1, Ghulam Hayat, R.W.2 and himself appeared as R.W.3. He produced the school certificate mark 'A' and closed his evidence. Subsequently, the Court allowed the petitioner to produce another witness namely Mst. Robina as R.W.4.
4. The petitioner's learned counsel contends that the minor was abandoned by her mother respondent No,1 and was brought up by the petitioner's sister. She was not really interested in the minor and had filed the present petition merely to torture the petitioner. He further submits that the mere fact that the petitioner had contracted another marriage, was no ground to hand over the custody of the minor to her mother who is least interested in her. He adds that the minor is being properly brought up by her paternal-aunt and is happily adjusted in the petitioner's family. If she is forced to come to a new atmosphere in the house of respondent No,1 she would be emotionally disturbed. Hence, the welfare of the minor requires that she should remain in the custody of the petitioner and his real sister. In support of his contentions he placed reliance on the following judgments:---
(1) Mst. Munawar Jan v. Master Muhammad Afsar Khan PLD 1962 (W.P.) Lah.
142.
(2) Mst. Amina Bi v. Muhammad Abbas Butt and another 1988 SCM R 1794.
(3) Mst. Zubeda Khanum v. The District Judge, Karachi South and 2 others 1988 CLC 556.
(4) Muhammad Ibrahim v. Muhammad Arif Sardar 1986 CLC 2050 and
(5) Muhammad Shafi v. Muniran Bibi and others 1992 CLC 2348.
5. On the other hand, the respondent's learned counsel contends that the father has contracted another marriage and has two children out of his second marriage. The minor cannot happily live under the shadow of the step-mother. He further submits that under the Islamic Law the mother is entitled to have the custody of the minor daughter till she attained the sage of puberty. He adds that mother has not contracted another marriage so far and is keenly awaiting the opportunity to get custody of the minor in order to shower her love and affections on the minor. He points out that the grandmother of the minor passed away on 19-1-1990 and now the child will be forced to live under the shadow of her step-mother. He further submits that the concurrent findings and judgments of the Courts below cannot be interfered in the exercise of Constitutional jurisdiction. In support of his contentions he places reliance on the following judgments:---
(1) Walayat Ali v. Khalida Bibi and others 1992 CLC 812,
(2) Ghulam Hussain v. Mst. Bakhan 1985 SCM R 1917,
(3) Khushi Muhammad v. Mst. Bashiran 1981 CLC 84, ;4) Noor Muhammad v. Mst. Bakhan 1981 SCMR 828, (5) Syed Liaque All v. Mst. Noushin Murad and 2 others 1991 CLC 605,
(6) Muhammad Ramzan v. Ghulam Zohra 1991 CLC 1465,
(7) Matloob Hussain v. Additional District Judge, Lahore and others 1992 M LD 1210 and
(8) Mst. Feroze Begum v. Lt.-Col .Muhammad Hussain 1978 SCM R 299
6. After hearing learned counsel for the parties, perusing the record and examining the minor in the Court I am fully convinced that the welfare of the minor demands that she should remain in the custody of the petitioner. The minor appears to be happily adjusted in the family of her father and would be emotionally disturbed if dislodged therefrom and given in the custody of her mother, respondent No,1. In the matter of custody of minors, the superiority of the claims of the contesting parties is relevant but the deciding factor is always welfare of the minor. The minor daughter is being properly brought up and educated by her father since her childhood. The evidence on the record shows that the mother, in her anxiety to become a P.T.C. Teacher, risked her marital life and proceeded to Kotli Town of Azad Kashmir in November, 1985 when the minor was only one year of age. The petitioner and his sister (Mst. Rubina R.W.4) took care of the minor. After about two years, she rejoined the petitioner in December, 1987 and then left the house in September, 1988.
Thereafter, again the minor was brought up by her father and the paternal-aunt. The petitioner wanted to keep the conjugal domicile intact and filed a suit for restitution of conjugal rights.
However, respondent No,1 wanted divorce and filed a suit for dissolution of marriage. The Family Court dismissed the petitioner's suit and decreed the suit of respondent No,1 on 16-11991. Thereafter, the petitioner contracted marriage on 28-1-1991. However, respondent No,1 has not remarried so far.
This factor apparently weights against the petitioner but on questioning the minor I found that she was properly looked after by her paternal-aunt and that she had no grouse against the step- mother. In her own statement as A.W.3 Mst. Nighat Ghazala admitted that the minor was "normal" with the father and that the family members of the petitioner used to say prayers and keep fasts regularly. At present, the minor is a little over nine years of age. She remained with the mother for a total period of about one year and eight months and spent the remaining period with her father and the paternal-aunt. The mother's ambition was to become a Teacher and she has achieved her goal by neglecting the minor and sacrifying the marital bond. In view of the above facts and circumstances, I am not inclined to believe that respondent No,1 has not remarried by design for the sake of her minor daughter.
7. The judgments relied upon by learned counsel for respondent No,1 proceeded on their own distinguishable facts. In Walayat Ali's case the mother was turned out of the house when her minor son was only 1-1/2 years old. She filed a petition for custody of the minor son which was allowed by the Guardian Judge. The said judgment was maintained in appeal. There was nothing to show that the mother had ever neglected her minor son. Under these circumstances, the father's writ petition was dismissed by this Court, keeping in view the fact that the father had contracted another marriage while the mother had not done so. It was also observed, "mother is symbol of sacrifice for her children and there is no earthly substitute for love, affection and care of mother". The general observation is not without exceptions and the one is found in the present case in which the mother neglected the minor to achieve her ambition of becoming a Teacher. In Ghulam Hussain's case the minor daughter was only three years of age and on facts it was found that her welfare required that she should remain in the custody of the mother. Keeping in view the tender age of the minor and the fact that the father had contracted mother marriage, the minor's custody was given to the mother. In Khushi Muhammad's case the minor daughter Mst. Nemat Bibi was only two years and three months old when relations between her parents became strained and the minor's mother was divorced after a few years. Thereafter, the father contracted another marriage but the mother did not. The father being a driver used to remain out of his house most of the time and the minor had to remain under the shadow of the step-mother. Under these circumstances, the minor's custody was given to the mother. In Noor Muhammad's 'case the minor daughter was aged about 16/17 years and her custody was allowed to remain with the mother with the observation that the mother was in a better position to look after her and to impart her such guidance which in such age could only be given by a mother. In Liaque Ali's case the minors were two small daughters of tender age and were living in the custody of their mother after she was divorced. The mother had brought up the minors and was taking good care of them despite being employed with Civil Aviation Authority. She was not found to be disentitled to the custody of the minors. Therefore, the father's petition for custody of the minors was dismissed. In Muhammad Ramzan's case it was found that the welfare of the minors required that they should live with their mother. The said finding was properly based on the evidence on the record and was not interfered with in the exercise of Constitutional jurisdiction. In Matloob Hussain's case it was held that normally a daughter should remain with her mother till she attained the age of puberty. In the said case, the mother was not shown to have deliberately neglected the minor. In Feroz Begum's case the Hon'ble Supreme Court was pleased to hold, "the overriding and paramount consideration always is the welfare of the minor. In deed this is the sole consideration that must prevail in the final analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in his favour unless it is in their welfare to do so". In the present case as observed above, welfare of the minor requires that she should remain in the custody of her father. Both the Courts below have merely focussed their attention to the comparative weight of the claims of the contesting parties, primarily with reference to the fact that the father had contracted second marriage and the mother had not but did not give due weight to the overriding legal consideration of welfare of the minor.
8. For the foregoing discussion, I accept this petition and declare the impugned judgments of the Courts below to be without lawful authority and of no legal effect. The minor will remain in the custody of the petitioner but the mother will be entitled to visit the minor in the petitioner's house or in the house of Iftikhar Ahmad Chaudhry, Councillor, Ward No,9, Lala Musa as was agreed to by the contesting parties at the time of disposal of C.M. 1 of 1993 (vide order, dated 6-4-1993).