RAJA MUHAMMAD SABIR, J.- In this Constitutional of learned Additional District Judge, Lahore dated 27.3.1995 has been assailed whereby the order of the learned Guardian Judge dated 12.1.1995 dismissing the application iff the petitioner under section 25 of the Guardians and Wards Act, 1890 for custody of three minor sons, namely, Umar Zahoor, Haris Zahoor and Khalid Zahoor was upheld.
2. Brief facts of the case are that the petitioner Mst. Rubia Jilani and respondent No. 1 Raja Zahoor Akhtar were married on 3.1.1986 and out of this wedlock three sons, namely, Umar Zahoor Raja, Haris Zahoor Raja and Khalid Zahoor Raja were born on 22.12.1986, 3.11.1987 and 10-9-1989 respective!}.
Unfortunately the marriage could not subsist for a long period and was dissolved on 12.11.1990.
3. Respondent No. 1 filed an application under section 25 of the Guardians and Wards Act for custody of the said minors and during the pendency of this application, an agreement was reached at between the petitioner and respondent No. I on 2.4.1992 and in the light of the said agreement, an amount of Rs. 79.000/- as dower money, maintenance allowance for the minors and petitioner for Iddat period was paid by respondent No. I to her and the minors were handed over to the respondent No. 1 on 5.7.1992. Consequently the said application was disposed of as withdrawn.
4. On 22.2.1993, the petitioner filed an application under section 25 of the Guardians and Wards Act for the custody of the three minors mentioned above on the grounds that she was entitled to get their custody being mother as the respondent has contracted second marriage and he was not treating the minors properly. It was also alleged that in case the minors are restored to the petitioner, she can give them better education at Lahore as she herself is a teacher, It was also contended that respondent No. 1 deliberately concealed the fact of his second marriage from the petitioner at the time of execution of the above-mentioned agreement before the learned Guardian Judge on 2.4.1992. She also alleged that a false F.I.R, was lodged by respondent No. 1 against the petitioner and her brother to pressurize her to give up the claim regarding custody of the minors and that he is not permitting her to meet the children, During the pendency of the said application under section 25 of the Guardians and Wards Act, an application under section l2 of {he said Act for interim custody of the minors was made by the petitioner in the Court of learned Guardian Judge but the same was dismissed on 9.5.1993. The petitioner filed an appeal before the learned District Judge which was heard and dismissed by the learned Additional District Judge lahore vide order dated 17.7.1993. Then she filed W.P. No. 14711 of 1993 before this Court which was disposed of vide order dated 7.7.1994, whereby the custody of two minors was directed to be handed over to the petitioner and regarding Umar Zahoor, it was observed that he would not be disturbed.
5. Respondent No. 1 filed C.P.S.L.A. No. 299 of 1994 before the-Hon'ble Supreme Court which was disposed of vide order dated 11.12.1994 as not pressed as the parties had agreed that the Guardian Judge be directed to dispose of the main case within one month from the date of hearing i.e. 14.12.1994. Learned Guardian Judge after recording the statements of the parties vide order dated l2.1.1995 dismissed the petition under section 25 of the Guardians and Wards Act. The petitioner filed an appeal against the order of the learned Guardian Judge, which was heard and dismissed by the learned Additional District Judge Lahore on 27.3.1995. This Constitutional petition has been filed challenging the impugned orders dated 12.1.1995 and 27.3.1995 passed by the learned Guardian Judge and the Additional District Judge in the second round of litigation.
6. Learned counsel for the petitioner has contended that it will be in the welfare of the minors to give their custody to the petitioner-mother. He submits that the learned Guardian Judge and the Additional District Judge have failed to consider the evidence on record in its proper perspective.
He maintains that keeping of the minors at Lahore where the mother is residing is more appropriate as compared to keeping them in the hostel of Lawerence College Ghora Gali, Murree.
He also argues that the orders of the Courts below are not sustainable in the eye of law and are liable to be declared illegal.
7. Learned counsel for respondent No. 1 has submitted that both the Courts below have concurrently held that transfer of custody of the minors to the petitioner would not serve any purpose of their welfare or their better bringing up. He submits that all the three minors are studying in one of the leading institutions of the country and respondent No. 1 has spent about Rs.
3,00,000/- (Rupees three lac) for their admission in the Lawrence College Ghora Gali and boarding arrangement in the college hostel where the petitioner is at liberty to meet them and to keep the children with her during the vacation in accordance with the direction given by the learned Guardian Judge in the judgment dated 12.1.1995. He also argues that keeping the minors at Muree, a calm and healthy place for educational purposes is more suitable for them so that they may remain uninfluenced by bitter relations of their parents. He lastly submits that reappraisal of the evidence is not called for while adjudicating upon this Constitutional petition.
8. I have heard the learned counsel for the parties and have gone through the entire evidence placed on the record. Section 17 of the Guardians and Wards Act. 1890 deals with the welfare of the minors which has to be kept in mind while adjudicating upon an application under section 25 of the said Act. Said section is reproduced below for ready reference: "
17. Matters to be considered by the Court in appointing guardian. - (1) In appointing or declaring the guardian of the minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) As between parents who are European British subjects adversely claiming the guardianship of the person, neither parent is entitled to it as of right, but other things being equal, if the minor is a male of tender years or a female, the minor should be given to the mother, and if the minor is a male of an age to require education and preparation for labour and business, then to the father.
(5) The Court shall not appoint or declare any person to be a' guardian against his will."
9. In Marina Pmhong v,. Derick Noel Pushong (PLD 1975 Lahore 793) the principles underlying above- mentioned provisions of section 17 were highlighted as follows:
(a) The paramount consideration is the welfare of the minor.
(b) This welfare must be judged consistently with the law to which the minor is subject.
(c) While determining the welfare of the minor regard shall be had inter alia, to the-
(i) age, sex, religion of the minor; and
(ii) character and capacity of the proposed guardian.
(d) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(e) As between parents, who are European British subjects adversely claiming the custody of the minor, the mother is to be preferred in case of a male or tender years or females. Preference should be given to father if the male is of an age to require education and preparation for labour and business.
10. It was laid down in the above judgment that: "Regarding the preference of one parent over the other, the rule laid down in Halsbury's Laws of English, 3rd Edition, Volume XXL at page 194 in para 429 is that "other things being equal, it is preferable that a child of tender years should be with its mother. Re. Written (1887) 57 L T 336 has been referred to in the notes for the principle that custody may be given to the mother without limit of age. In Re: F. (1969) 2 AJ1 E.R. 766, it was held that as a general rule it is better for small children and especially little girls, to be brought up by their mother; and this, ol course is a consideration of great importance, In W.v. W. & C. (1868) 3 All E.R. (C A) it was held that it is a general principle, in question of custody, that it is better for a boy of eight years of age, other things being equal, to be with his father rather than his mother, even if he has been with his mother up to that age. But this was a case where the mother was divorced on account of adultrery. In a later case Re.C.(A) (an infant) C V. C, it was found that there is no principle in custody cases that a boy of eight should, other things being equal, be with his father in all cases the paramount consideration is the welfare of the infant and the Court must look at the whole background of the infant's life and on the circumstances of the case.
The principle of preference of either parents, with reference to its historical background, has been summed up in the Family Law by Bromley at page 277; "Commonsense dictates that normally the mother should have the care and control of young and sickly children (particularly little girls (Re: F(1969) 2 All E.R. 766(69)). In recent years Courts have tended to take the view that other things being equal, it may be better for an older boy to have the influence of his father.
There is a note to the following effect on the same page:- "But there is no principle to this effect. Re: C.(A.) (1970 All E.R.309 (C.A.)"
It is also stated that "it is generally desirable to keep brothers and sisters together and not to split the family up more than is necessary".
11. The ratio of the above referred judgment is that a male infant should remain in the custody of the mother so long as he does not require education and at the same time is also essential and desirable to kefcp brothers and sisters together and not to split up the family unnecessarily.
12. Both the Courts below have taken into consideration the admitted fact that all the three brothers are studying in-the Lawrence College Ghora Gali Murree and are staying in the College hostel. They are, therefore, enjoying the company of each other which will promote their brotherly feelings inter se and the elders can look after the younger. The age of elder minor is 9 years and 3 months and other two minors are 8 years - 3 months and 6 years - 6 months respectively. The principle enunciated by the above referred judgment in the light of provisions of section 17 of the Guardians and Wards Act was followed by both the Courts below while passing the impugned judgments which are perfectly in accordance with the spirit of law.
13. Contention of learned counsel for respondent No. 1 that order of the learned Guardian Judge cannot be held to be without lawful authority is not without substance. It is a judicial order passed under section 25 of the Guardians and Wards Act after taking into consideration the entire evidence produced by the parties. A judicial order or quasi judicial order cannot be held to be without lawful authority on the ground that the re-appraisal of the evidence may lead to a different conclusion, In this behalf, it has been held by Hon'ble Supreme Court in Badrul Haque Khan Vs. The Election Tribunal, Dacca and others (PLD 1963 S.C. 704) that: "Erroneous decision on law point, not necessarily without lawful authority."
It was laid down by their Lordships at page 717 of the above citation that: "At*this point, it is in our view, desirable that we should state that in order to constitute an act of a judicial or of quasi-judicial authority an act performed "without lawful authority it must first be borne in mind what is the nature of the authority vested in such body.......................................................
14. The submission of the learned counsel for respondent No. 1 that the concurrent finding of fact given by the Courts below that the welfare of the minors lies in continuing their studies at Lawrence College Murree does not call for any interference in the exercise of constitutional jurisdiction in view of the rule laid down in Mst Aziz Khatoon ami others Vs. Mst. Zuhaida Khartum (l988 S.C.M.R. 832, is not without force, It has been laid down in the above judgment that "These are questions of fact and were completely decided in favour of the respondent and therefore, interference in constitutional jurisdiction -by High Court was rightly refused".
The Hon'ble Supreme Court while dismissing the petition upheld the order of the High Court laying down a principle that a finding of fact in guardianship matter recorded by the Courts below could not be interfered with in the writ petition.
15. Similarly in another case Rafiq Hussain Shah Vs. Mst. Imtiaz Bibi and another (1990 C.L.C. 30) it was observed by learned Division Bench of Peshawar High Court that "High Court in constitutional jurisdiction would only interfere when the Court or Tribunal "acted without jurisdiction or in violation of relevant statute or law as laid down by the Superior Court".
Judgment and decree of Family Court having attained finality, mere fact that on re-appraisal of evidence. High Court might come to a different conclusion, would not make decision of Trial Court without jurisdiction."
16. Likewise in case reported as Mst. Amina Bi Vs. Muhammad Ahhas Butt and another (I988 S.C.M.R.
1794) their Lordships of the Supreme Court held that "We are of the view that the learned Single Judge of the Lahore High Court, Rawalpindi Bench was correct in arriving at the conclusion that it was in the welfare of the minors that their custody be handed over to the respondent-father and that since the finding on the question of welfare of the minors was a finding of fact arrived at by the Additional District Judge on the basis of the material on record, this finding of fact could not be interfered with in the exercise of the writ jurisdiction."
17. The principles laid down in the above judgments fully support the judgments of the respondents No. 2 and 3. Neither the learned Guardian Judge nor the Additional District Judge has committed any illegality in holding that it will be in the welfare of the minors not to. Disturb their studies and at the same time the petitioner has been permitted to see the minors in their College in view of the direction given by the learned Guardian Judge in the impugned judgment. All the minors-brothers are studying and living together in the hostel of the Lawrence College Murree, where the respondent-father has arranged admission after spending huge amount, It is clearly in the welfare of the minors to remain in the same Institution in order to complete their studies. The impugned orders cannot be said to be without lawful authority.
18. Learned counsel for the respondent has also rightly urged that the minors were entrusted to the respondent No, I in the light of agreement dated 2.4.1992 whereby the respondent paid Rs. 79,000/- to the petitioner as maintenance and price of dowry and consequently the application under section 25 of the Guardians and Wards Act was withdrawn by the respondent as mentioned in para No. 3 above. The petitioner cannot be allowed to resile from her undertaking given in the Court with regard to the restoration of the custody of the minors to the respondent. Perusal of evidence on record shows that the petitioner is not entitled to claim the custody of her minor sons.
19. It is established from the record that in the light of the agreement dated 2.4.1992 (Ex.R-7). The respondent met the demands of the petitioner and children were handed over to respondent- father, who got them admitted in Lawrence College Ghori Gali Murree after spending a. Huge amount for their admission and boarding arrangement in the College's hostel. The said College is a well-reputed Institution of the country. Keeping all the three minor brothers together in such an established Institution would definitely help them in building their career as good, educated and disciplined citizens.
20. The status of respondent No. I-father is also better as compared to the petitioner-mother. He is a senior Officer of the Federal Govemment presently serving as Assistant Collector of Central Excise and Sales Tax, Rawalpindi and he can easily bear the expenses of schooling, boarding and lodging of the minors at the said leading Institution of the Country and their better bringing-up as compared to the petitioner, who is statedly working as a Teacher in some private Institution. The progress reports shown to me during the hearing of the case also indicate that the minors are doing extremely well in their present Institution. They are also enjoying good health. The three minors being aged about 10, 8 and 6 A years respectively, respondent No. I- father is entitled to retain their custody. Transferring the custody of the minors at this stage will definitely affect their studies and it will also cause set back to them if they are shifted from Murree to Lahore. This is also one of the ground for not acceding to the request of the petitioner for shifting of the minors from Lawrence College Murree to some Institution of equivalent level at Lahore. Welfare of the minor is of paramount importance and lies in keeping all the three minors in the present Institution at Murree where they are studying satisfactorily and getting positions in their respective classes' examinations/test. This will also slightly help to keep them away from the bitter relations of their parents. The contentions of learned counsel for the petitioner are without any substance and are accordingly repelled. T lie impugned orders are based on valid reasons calling for no interference in this constitutional petition. Findings of both the Courts below are supported by evidence on record. Learned counsel for the petitioner has not been able to point out any illegality in the impugned orders.
21. In view of the principles laid down in the above referred authorities find no merit in this petition and dismiss it without any order as to costs.