This writ petition may be treated as admitted case. Brief facts of the instant petition are that the petitioner and respondent No. l filed custody application under section 25 of the Guardians and Wards Act in respect of the minor Shahid Bilal born on 17-12-1989 and Zahid Bilal born on 25-11-1991.
2. The marriage between the spouses was dissolved through a divorce given by the petitioner which became effective on 31-5-1992. The petitioner has remarried. The learned Guardian Judge-II, Lahore by order dated 13-7-1994 dismissed both applications and allowed the minor Shahid Bilal continue to stay with his father and Zahid Bilal with his mother.
3 The petitioner did not assail the order passed by the learned Guardian Judge-II, Lahore while the respondent No. l challenged the same through an appeal. The learned Additional District Judge, Lahore accepted the appeal and reversed the order passed by the learned Guardian Judge II, Lahore and directed the respondent to hand over the custody of minor Shahid Bilal to present respondent No. 1. Against this judgment the petitioner has come in the instant Constitutional petition.
4. Learned counsel for the petitioner had submitted that neither the learned Guardian Judge nor the learned Additional District Judge correctly framed the issues which has prejudiced the whole case and none of the Courts below applied their mind to the law laid in Mst. Zohra Begum v. Sh.
Latif Ahmad Munawar (PLD 1965 Lah. 695) regarding the financial sources for rendering education to the minor as according to him respondent is a poor lady and she has no permanent way of income and she is unable to give education to the minors while on the other side the present petitioner is a Naib Qasid in the Corporation and he possesses all sources to educate the minors and, therefore, order and judgments passed by the learned Courts below lack the judicious view while deciding the paramount consideration of welfare of the minors and does not determine and consider the same and thus both the impugned judgments are harsh and unjust as the learned Guardian Judge and the appellate authority have not exercised loco parenti jurisdiction.
5. Learned counsel for the respondent has controverted all the arguments advanced by the learned counsel for the petitioner. He has argued that the petitioner has lost his right of Wilayat as he has re-married after two months of divorcing the present respondent No. l while respondent No. 1 has not re-married and does not intend to marry in future. Moreover, the petitioner has not challenged the order passed by the learned Guardian Judge while dismissing his custody application in respect of Zahid Bilal minor, therefore, he cannot challenge the same in the Constitutional jurisdiction of this Court. He further argued that there are chains of authorities where custody of the minors has been given to the mother, reliance has been placed on Rana Abdul Bari v. Mst. Khalida Parveen and others 1994 MLD 150, Lt.-Col.(Retd.) Ijaz A.I v. Mst. Shaheen and others 1993 CLC 2088, Muhammad Saddique v. Additional District Judge and others 1993 CLC 2078 and Mst. Akbar Bibi v. Shaukat A.I 1981 CLC 78 and even the poverty of mother is no ground for denying the custody of minors because father is always under a duty of law to provide maintenance for his children. He has relied on Mst. Fazeelat Begum v. Public in General and others PLD 1994 Azad J&K 1 and Sakhawat A.I and others v. Mst. Shui Khelay PLD 1981 SC 454. He has contended that this is in the paramount interest and welfare of the minors that they should not be separated from each other. He has relied on Walayat A.I v. Mst. Khalida Bibi 1992 CLC 812 where it was held that when the minor is placed between the real mother on one side who had neither remarried nor intended to remarry for the sake of her child; and a father remarried to a stranger lady, then the question of minor's welfare should be examined to discover as to which place would be conducive to his better future, the scales tilted in favour of real mother only. Minor being of tender years, his exposure to a step-mother, who may have her own children in the coming years and develop a conflicting interest would not be conducive to minor's welfare.
6. I have heard the learned counsel for the parties and have carefully, perused the order of the learned Guardian Judge while dismissing both the applications for custody of the minor and allowing the minors to stay with the spouses where they were staying before at the time of filing of custody application and also the judgment of the learned Appellate Court.
7. The respondent No. l filed custody application in respect of Shahid Bilal as according to paragraph 9 the said minor at that time was about 3 years of age and was with the present petitioner and the other minor Zahid Bilal was only 12 months old and was in the custody of respondent. This petition was vehemently contested by the present petitioner who also filed an application under section 25 of the Guardians and Wards Act which was contested by the present respondent. Both the parties produced their evidence AW-1 is Akbar A.I who has stated that he is the real brother of the respondent No. l who was married with the present petitioner in the year 1987 and happily" resided over there for 8/9 months and after that both the spouses started fighting with each other thereupon Shahid Bilal was born and he has tried his level best to conciliate all disputes between the spouses and during this time the second child Zahid Bilal was born. Neither the petitioner gave any maintenance nor bore the expenses of the maternity of the respondent however, he has tried to take back the respondent to his house. He gave divorce to the present respondent in the year 1992. He and his brother Amjad A.I are bearing all the expenses of the respondent and the respondent also sews clothes. This witness was cross-examined at length but his evidence remained unshattered. (AW-2) is Muhammad Sharif who is brother-in-law of the respondent and he has also stated that the disputes between the spouses are mainly due to the reason that the petitioner was not maintaining the respondent and used to remain absent from the house and eventually he expelled the respondent from his house and later on divorced her and deprived her from the custody of minor Shahid Bilal. He has also been cross-examined at length and in his cross-examination he has admitted that the respondent was living with his brother Akbar A.I and the dispute between the spouses were purely for non---maintaining the respondent.
Respondent No. l appeared as (AW-3) and she has stated that she has been working and earning through sewing and she is earning well and even her brothers are earning Rs.5,000 per month. AW- 1 is Haji Muhammad Ibrahim who has stated that the petitioner is a Naib Qasid at Lahore Municipal Corporation and he and his uncle have 4-1/2 acres of land and they cultivate the same and he is looking after the interest of the minor. He has admitted in his cross-examination that the present petitioner's father name is Rehmat and he has five brothers and a sister and the petitioner is living with his mother and uncle and the petitioner's father has 2-1/2 acres of land and he has never visited the respondent's brother-in-law's house and he does not know that the respondent's brother is living in Lahore. R.W.2 Muhammad Amin, he has supported R.W.1. R.W.3 is Muhammad Ashraf petitioner who stated that he has divorced the respondent on 31-5-1992 and the minor Shahid Bilal is in his custody and he is being educated in Primary School Haji Kot. He has stated that his father and uncle are living together and they have 7 acres of land and he is ` looking after the interest of the minor. He is a Naib Qasid in Lahore Municipal Corporation and the respondent No.1 has no source of income. In his cross--examination he has admitted that he is appointed in Shahdara and he goes to his office on bicycle and he has re-married.
8. The learned Additional District Judge while deciding issue No. l which is as follows:-- "Who between the parties is entitled to the custody of the minor keeping in view the welfare of the minors? OP Parties.
Reversed the finding of the learned Trial Court while Shahid Bilal who is in the respondent's custody is undergoing education and that the respondent has no permanent abode and she continuously changes her place of residence and she has no means of earning and is relying upon her brother to feed her. Learned Appellate Court has held that the fact that father was financially better than the mother could not make it a factor denying the right of Hizanat of the minor to maintain the child. The father has remarried and even if the mother is poor but she intends not to marry having been divorced by her husband has a better right of custody.
9. So far as the objection of learned counsel for the petitioner for non---framing of the issues is concerned this is no stage to make its objection. Learned counsel for the parties have their right to request the Trial Court to frame issues according to the pleadings of the parties. Moreover, although this issue is framed in a different way but still it also relates to the welfare of the minors, therefore; contention of the learned counsel that issues were not framed properly is not legally tenable.
10. I have seen the minors in the Court. Both are enjoying good health. The mother present in the Court has firmly stated that she is ready to forgo the maintenance for both the minors if the custody of Shahid Bilal is given to her. According to her the present petitioner is not interested in the welfare of Shahid Bilal he has rather given the same to his uncle who is issueless and this minor is being brought up by him and his wife while the petitioner is enjoying his second marriage.
Moreover, according to her the petitioner has not assailed the order of learned Guardian Judge in respect of the minor Zahid Bilal whose custody was refused to him and this shows that he is not interested in the children.
11. As far as the custody of minor is concerned from the Court of learned Guardian Judge till the Superior Courts the paramount consideration of welfare of minor is to be determined while carefully observing the welfare of the minors. It is an admitted fact that there is no substitute for a mother especially when the father has re-married and no step-mother can give the affection and love which the real mother can give to her children. I have seen the respondent in the Court and she seems quite determined resolute and firm in her decision to bring up the children even through hardwork and give them the proper education, care, love and affection and she was even ready to forgo her right of claiming the maintenance of the minors.
12. I have carefully perused the judgment of the learned Guardian Judge. While giving one minor to the mother and other to father the learned Guardian Judge has divided the custody of both minors. Being a Court enjoying loco parenti jurisdiction each Court has to strictly scrutinize the facts and circumstances of each case. A family is the only juncture where brothers and sisters live together under their parents and enjoy the natural harmonious affection and love and share their small secrets of happiness. It is not in their interest to live apart from each other in different environments, under dispute and hatred which usually arise from the result of a broken home, therefore, the learned Appellate Court has rightly interfered in the divided custody of both the minors
13. Now the question whether poverty of a mother can be taken as good ground to deprive her from her natural custody or whether father, who is re--married and is enjoying comparatively better financial status than a mother has a right of custody of minor? In the present case the mother seems firm and resolute to dedicate all her life to bring up her children and is working hard and facing the hard challenges of life for the sake of her children and does not intend to marry in future.
On the other hand the father who has re-married with a stranger lady is advocating the cause of one of his relative to keep up the custody of minor. Under such a situation scales of justice tilt in favour of mother. The nature has made a woman the most adorable person on the globe as "a mother". Mother and child enjoy natural. Sense of safety and protection and understanding and this sense which normally prevails between this relationship and keeps one --day old child quite safe, by the side of a mother sound asleep. The tender custody of mother is taken away only where strong grounds exist otherwise.
14. Respondent standing in the Court has reiterated that she is willing to dedicate her whole life to bring up her children. It is a sign of good luck to the petitioner to have the real mother available as a nurse to bring up his children.
15. In the present case the petitioner is still possessed with his right to maintain his children properly and nicely. He is under a duty of law to maintain the children and enable them for better education, better future and good health. He is lucky that the respondent No. l does not intend to remarry and the mere arguments that she has no source of income cannot deprive her from the custody of minor who would be better looked after by her rather than step-mother. Moreover, it is not in the interest and welfare of the minors to be separated from each other devoid of the love and affection which brothers and sisters enjoy and share while living together. Although the mother has a right of Hizanat of a minor child till the age of seven years but as the Guardian Court enjoys loco parenti jurisdiction while deciding the custody of minors, therefore, I find no legal infirmity in the judgment passed by the learned Appellate Court and, therefore, finding no substance in the present writ petition the same is dismissed.
16. However, a clear direction is given to the respondent No. l to allow the father-petitioner to meet the minors at her house on every second Sunday of the month and if it is impossible she can take the minors to the Court of learned Guardian Judge, Lahore on the aforesaid date and allow the father to meet them there and provide them maintenance as well as other necessities of life, no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.