1. Admittedly, the parties belong to Shia faith and were married on 24-4-1991. Out of the wedlock, a male issue was born on 29-7-1992 who was given the name of Syed Aamir Mandi. Unfortunately, the marriage between the parties had broken down and the aforesaid infant child was left with her mother. The petitioner being the father of the child applied for his custody by moving a petition under section 25 of the Guardian and Wards Act before the Guardian Judge, Islamabad, on the ground that according to Fiqah Jafferia, the father was entitled to the custody of an infant son on attaining the age of two years. It was also contended that the petitioner was in a better position to bring up the child according to his own tradition and to make him a useful citizen for the State. It was also contended that the family atmosphere of the mother of the child was not congenial for bringing him up in the right manner. The petition was contested by the mother of the child who asserted that she was an earning woman and could easily bring up the child in a befitting manner without prejudicing his future. In this regard, it was contended that the child was not only being looked after by her but also by the other family members including their father who had since been retired from service. The child was also got admitted in a good school where he was receiving education on sound lines.
2. 2.The controversy between the parties was reduced into issues. The learned trial Judge came to the conclusion that the welfare of the minor required that his custody should remain with his mother. In this regard, the following observation by the learned trial Judge is worth of consideration:-- "In the present case, the child has been appearing before this Court many times. He was always well dressed and healthy. Though his father likes him very much, yet I believe that the small kid will be mentally shattered if he is departed from his mother. Since his birth, he is with his mother, he has been admitted in the school and the mother has not yet arranged second marriage. It will thus be fare enough to decline the petitioner and refuse custody to the father, till such time the boy reaches the age of distinction."
3. The finding of the learned trial Judge was also confirmed by the learned Appellate Court on the principle that the welfare of the child being paramount factor required that he should be left in the custody of his mother.
4. 3.To assail the concurrent findings in this Constitutional Petition, learned counsel for the petitioner heavily convassed the principle laid down by the personal Law of the child whereby the father had a preferential right of custody after he attained the age of two years. In this respect, learned counsel relied on Captain S.M. Aslam v. Mst. Rubi Akhtar (1996 CLC 1 (Karachi), Mst. Imtiaz Begum. v.
5. Tariq Mahmood and another (1995 CLC 800 (Lahore), Muhammad Sadiq, v. Mrs. Sadiq Safoora (PLD 1963 (W.P.) Lahore 534, and Mst. Chand Bibi v. Mst. Bulbullah (PLD 1958 (W.P.) Peshawar 26 to show that the welfare of the minor child is deeply linked with his Personal Law and cannot be determined independently. It was, therefore, urged that the Guardian Judge has to follow the dictates of the Personal Law while deciding about the custody of a ward. Since in the instant case, the learned Courts below had not pointed out any factor whereby the father stood disqualified as compared to the mother of the child in respect of obtaining the custody under the Personal Law, therefore, the impugned orders were not only bad in the eyes of law but were also determinental to the welfare of the ward. The underlying rule of the Personal Law is that for a male child, father is the best person to decide as to how and in what manner the future career of the child is to be built up. The mother being representing the weaker sex cannot expose the child safely to the outer world for building up his career by avoiding the pit-holes which if not guarded may adversely effect the character building of a male child who has to be turned out ultimately as a grown up man. In this regard, learned counsel further contended that in the present set up of the society, the challenges to the character building of a male child are more safely to be tackled with by a father as compared to a mother. It was, therefore, contended that both the Courts below grossly erred in coming to the conclusion that the welfare of the minor required departure from the Personal Law in delivering the custody of the child to his mother rather than to his father.
4. I have considered the foregoing arguments and have given my anxious thinking to the matter in issue. I have also gone through the pleadings as well as the evidence brought on record with the able assistance of the learned counsel for the petitioner. It is true that the father has a preferential right under the Personal Law to get the custody of a male child after the period of Hazanat is over.
6. But it is also accepted and being persistently followed on the basis of numerous findings of the superior Courts that the welfare of the minor is always a paramount consideration while determining the question of custody. The Guardian Judge has to exercise parental jurisdiction over the ward while deciding the question of welfare vis-a-vis the custody. Even the authorities cited at the Bar by the learned counsel for the petitioner clearly pointed out that though the dictates of Personal Law are to be kept in view but that would not entitle the father to the custody of the child ipso facto. It means that the custody under the Personal Law is not to be allowed blindly or in an automatic fashion but has to be decided objectively. It is clear that the Guardian Judge has to see as to where the welfare of the child lies. As such, it has rightly been held repeatedly and accepted universally that the welfare of a child is the paramount consideration while deciding about the custody of a child which deply concerns character building and his future prospects. The decision about the welfare is a question of fact and in this case, both the Courts below have rightly determined that the welfare of the child demands that he should be left in the care and custody of his mother till he reaches the age of discretion. Hence) do not find any material or fundamental defect in the findings of the Courts below so as to call for interference in the extraordinary jurisdiction of this Court on the Constitutional side. The writ petition being meritles is dismissed in limine.