Muhammad Riaz Tariq was married to Mst. Aysha Bibi and a son Waseem Ahmad was born out of the wed-lock. Muhammad Riaz filed a petition under section 25 of Guardian and Wards Act, 1890 for custody of his son on 15-6-1995. According to Muhammad Riaz, Mst. Aysha, his were took away the minor about 5 months prior to the filing of the petition to her parent's house and had not returned the minor to the father despite being called upon to do that.
2. The petition was resisted and written reply was filed wherein it was contended that the petition was submitted only to create defence in the suit filed for recovery of maintenance allowance against Muhammad Riaz father and that he was not entitled to have the custody of the minor.
3. Following issues were settled by the learned Guardian Judge on the basis of pleadings of the parties:-- Issues:
(1) Whether the petitioner is entitled, to custody of minor as prayed for? O.P.A.
(2) Whether the petitioner has filed the application malafidely as counter-blast in order to avoid himself to provide maintenance? O.P.R.
(3) Relief. .
Reconciliation proceedings were recoursed to but the same failed. Thereafter, the evidence was produced by the parties. Muhammad Riaz appeared as A. W.1. He stated that Waseem his son was aged about 5/6 years and that he could be brought up more properly by him and could get better education. He also stated that Mst. Aysha Bibi lived in the house of her brother, and he desired to get the minor admitted in a better school. He was subjected to cross-examination, wherein he admitted that he served in Army. Muhammad Nawaz A.W.2 stated that the mind of the minor was being poisoned by the respondent and that she could not bring up the minor properly and that the father and the grandfather could bring up the child more properly. Mst. Aysha Bibi appeared as P.W.1. 'She stated that the minor was studying in Jinnah Public School which was an English Medium School and he was being brought up properly. She stated that she also filed a suit for recovery of maintenance allowance and another suit for dissolution of marriage. She was cross-examined and she stated that grand-parents of the minor did not come to see the child and she admitted that she did not allow them to meet the minor. She admitted that she was living with her parents and brother who was also serving in Army and that she had 5 sisters and one brother. She also admitted that the school where the minor was studying had 30 students.
5. Learned lower Court decided issue No. l in favour of the father. Issue No.2 was decided against the respondent and accepted the petition by judgment, dated 15-7-1996. Mst. Aysha Bibi preferred appeal against the judgment passed by Guardian Judge, Khushab. Learned Additional District Judge, Khushab dismissed the appeal by judgment, dated 10-7-1997 and views of the learned Guardian Judge were endorsed on various issues. Aggrieved by the decision rendered by the learned lower forums, present petition was submitted which was admitted to hearing on 17-7-1997.
Learned counsel for the parties have been heard today.
6. Learned counsel for the petitioner submitted that the learned Additional. District Judge and the learned Guardian Judge took a subjective view of the material on record and question of welfare of the minor was not determined properly by both the lower forums. It was contended that both the learned lower forums were influenced by the fact that the minor was almost 7 years old and as such the father had the right to have custody of the minor and the second aspect of the matter which had prevailed upon the lower forums was that the petitioner did not have the means to bring up the child which view. Too, was erroneous. It was submitted that the father was serving in Army and was not in a position to look after the child properly whereas the mother was bringing up the child in s befitting manner. He was being educated in an English Medium School and therefore, the mother was entitled to keep the minor with her. It was argued that the impugned judgments were without any legal and factual L: sit and were unsustainable. Learned counsel for the respondents on the other hand submitted that both the learned lower Courts had concurrently found issue No. l in favour of the respondent father and concurrent findings of the lower forums cannot be upset in Constitutional jurisdiction of this Court particularly when the petitioner has been unable to point out any defect in the same. It was submitted that the minor was born in 1989 and was aged 9 years now and the law on the subject was well-settled that after having attained such an age, the minor has to be given in the custody of father as he is in a better position to prepare the minor to meet:' the future challenges. It was also submitted that the petitioner-mother was dependent on other members of her family and had no independent means to bring up the child and this factor should also be kept in view as the minor is not likely to get that love and care in the house of his maternal uncle where the 'minor was living or was being brought up. It was submitted that the learned lower forums had answered different issues in accordance with law and their findings were based on correct law and proper appraisal of evidence on record and did not call for any interference.
7. Learned counsel for the parties have been heard at length and record seen with their assistance.
The age of the minor and the environment in which he was being brought up apparently were taken into account by the learned lower, Courts to decide the question of welfare of the minor, which question was answered in favour of the father. Both the factors were validly considered by the learned Courts below to reach the conclusion they did. A father has inalienable and first right to keep his offspring with him. The custody can change hands in certain circumstances which have been highlighted in earlier judgment passed by this Court, namely, Mst. Imtiaz Begum. v. Additional District Judge and others 1995 CLC 800. The petitioner-mother and the respondent-father are first cousins and apparently, are of same social status. The minor is being educated in the same village and it could not be said that the mother was in a position to provide more enlightened atmosphere to the minor. The father-respondent in this case obviously is not disqualified to have the custody of his minor son who is aged about 8 years now. He has a preferential right to the custody of the minor. Unless it was shown that the petitioner-mother was enjoying such a status in life or was living in an environment which was very enlightened than what the father could provide the mother-petitioner could not claim any entitlement to have the custody of the minor of such an age. Both the lower Courts are of the view that the father was in a better position to take care of the son. This finding is neither contrary to record nor any provision of law has been violated by, the learned lower Courts, while giving this findings. The impugned judgments being in accord with law on the subject as well as the evidence on record obviously do not call for any interference.
Petitioner has been unable to make out any case for judicial review of orders passed by forums of exclusive jurisdiction.
8. It was also alleged by Muhammad Nawaz A.W.2 that mind of the minor was being poisoned by mother who was also not allowing the minor to see the father or grand-parents. The petitioner admitted that she was not allowing the minor to see his relatives on paternal side. A parent, who creates hatred in the mind of other parent, in my view, has no right to keep the minor with him/or her.
9. In the course of arguments addressed at the Bar it was also pointed out by the learned counsel for the petitioner that a sum of Rs.1,00.000 was deposited in a Bank Account in the name of the minor. It was submitted that the father should be restrained from operating that bank account. The prayer made by the petitioner is bona fide and learned counsel for the respondent have also no objection to the same being allowed. The minor's bank account shall be operated under the supervision of the learned Guardian Judge having jurisdiction in the matter.
10. The petitioner-mother, shall have the right to keep the minor with her from 9-00 a.m. To 5-00 p.m on each Sunday. Thereafter the minor shall be returned to his parental home. The learned Guardian Judge Khushab, shall ensure that the above arrangement is followed by the parties.
11. The petition is disposed of with the above observations.