' SHAH JEHAN KHAN, . J.---Jaffar Khan has invoked the Constitutional jurisdiction of this Court against the judgments of the two Courts below whereby the custody (Hizanat) of his minor son namely Adnan aged about 10/11 years who was given in (Hizanat) to his divorced wife Mst.
Shaheen, respondent No,1 .
2. Mst. Shaheen, has also filed a Constitutional Petition No,784 of 1998 challenging the vires of judgment and decree of the District Judge, Swabi dated 21-5-1998 whereby accepting the appeal of respondent No,1, the custody of her minor daughter namely Mst. Yamna aged about 8/9 years was granted to the father, respondent No,
1. Both the writ petitions being between the same party and involving a common question of law and fact are disposed of by this single judgment.
3. Facts in brief of the former writ petition are that Shaheen Begum, the mother invoked the jurisdiction of Judge, Family Court for the custody of her minor son. In the averment of her plaint she has alleged that marriage tie between her and Jaffar Khan, respondent, has been dissolved through divorce. Adnan, the minor son remained in her custody after the dissolution of marriage and was admitted in a local public school wherein she was serving as teacher. He was fraudulently and dishonestly taken away by his father who is an voluptuous person and a clerk in the Education Department having no sufficient means and that she is entitled for the custody of her minor son under the injunctions of Islam. The averment made in the plaint was seriously controverted by respondent No,1 in his written statement. The learned Senior Civil Judge empowered as Guardian Judge reduced the pleadings of the parties into the following issues:-
(1) Whether the plaintiff has got a cause of action ?
(2) Whether it is in the interest and welfare of the minor to grant his custody to the petitioner ?
(3) Relief.
4. Both the parties adduced evidence in support of their respective contentions and the trial Court in the conclusion decreed the suit of plaintiff/respondent No,1, vide his decree and judgment dated 20-3-1996. Appeal of respondent No,1 also proved unsuccessful and the decree and judgment of the trial Court was up held by the Additional District Judge, Swabi vide his judgment dated 1-11- 1997.
5. In the latter writ petition the record reveals that Jaffar Khan, respondent No,1 filed a suit for the custody of his minor daughter Mst. Yamna aged about 8/9 years in the Court of Judge Family Court Swabi. The averment of plaint reveals that the relationship of husband and wife between him and Shaheen Begum petitioner/defendant was established in 1988 and dissolved on 29-8-1995.
Adnan, minor son, and Mst. Yamna, minor daughter, were born of the wedlock. The marriage tie between the parties was dissolved on divorce on 29-8-1995. After the dissolution in a suit for maintenance a decree for Rs,400 p.m. As maintenance for Mst. Yamna was granted against him.
His divorced wife contracted a second marriage with one Aurangzeb of Gadoon area. Due to her second marriage it was alleged that the petitioner/defendant was not entitled to keep in her custody the minor daughter as her step-father will not provide her proper maintenance, better education and bright future. The suit was contested by the petitioner/defendant on factual as well as legal grounds. The trial Court formulated the following issues arisen from the pleadings of the parties:-
(1) Whether the petitioner has got cause of action?
(2) Whether the petition is incompetent in its present form?
(3) Whether it is in the best interest of the minor to remain in custody of respondent, keeping in view the second marriage contracted by her?
(4) Whether the petitioner is entitled to the decree for custody of minors?
(5) Relief.
6. Both the parties adduced their evidence as they wished to produce. In the conclusion the trial Court dismissed the suit of plaintiff/respondent No, 1 . But on appeal the learned District Judge has reversed the decree and the custody (Hizanat) of the minor daughter was entrusted to respondent No,1.
7. The learned counsel for the petitioner, Jaffar Khan, contended that the son being aged about 10/11 years is to be given in the custody of the petitioner under the injunction of Islam. Respondent No,1 mother of children has contracted a second marriage in village Utla, the former tribal territory and recently brought in the limits of settled area of District Swabi. Due to contracting second marriage by respondent No,1 and taking the minor to the house of her second husband to far-flug area would deprive the petitioner from a lawful guardian to look after his son. Further contended that respondent No,1 has left the job of teaching and has joined service as lady health visitor and due to her service liability she would be not capable to have a continuous look after of the minor and he will be in the custody of his step father and his relations who are not expected to provide a proper treatment and look-after to the minor son. With these submissions he prayed for declaration of the order and judgment of Senior Civil Judge/Judge Family Court and order of the Additional District Judge, Swabi as without lawful authority and without jurisdiction vested in them.
Also prayed for dismissal of the connected writ petition filed by Mst. Shaheen Begum. In support of his submissions he relied upon PLD 1953 Lah. 73, PLD 1956 Lah. 484, PLD 1975 Lah. 86, PLD 1985 Pesh.
156 and 1999 SCMR 1834.
8. In rebuttal the learned counsel for Mst. Shaheen Begum submitted that though in normal circumstances the father is entitled to get the custody (Hizanat) of a male child who has attained the age of seven years but this principle of law is always subject to the welfare of the child. In case of minor female child the mother has been held entitled for the custody under the principles of Sharia, of course, subject to the welfare of the minor female child. To determine the welfare of a child is a question of fact which has been determined by the two Courts below in case of Adnan, minor son of the parties in favour of the mother and this august Court will not like to interfere in the concurrent findings of the two Courts regarding question of fact in its Constitutional jurisdiction.
Further submitted that though the mother has contracted a second marriage but she being a self- earning lady could properly look after her minor son. Village Utla is lying in the same District, Swabi and is hardly 10 miles from the village of the petitioner. The mother is still serving as teacher and can provide a better look after to the child as compared to the petitioner. The apprehension that the mother would not be able to have an eye on the minor children during her service hours is misconceived as during those hours the minors would be at school where they will be taken by her mother and will collect them from school herself being a school teacher with no intervention of her second husband and his relatives. The custody of minor female child namely Mst. Yamaa was granted to the mother but the learned District Judge, Swabi by misusing his jurisdiction has reversed the finding of the trial Court/Family Court by making a misinterpretation of the law and facts. Further contended that the father of the children has also contracted a second marriage and he will not be able to provide a proper look after and treatment to the minors. He prayed for the dismissal of the writ petition filed by Jaffar Khan and a declaration of the order dated 21-5-1998 passed by the District Judge, Swabi as illegal, without jurisdiction and of no legal effect. In support of his submission he relied upon PLD 1985 Pesh. 156 and 1993 CLC 2116.
9. After hearing the learned counsel for the parties, perusing the record and going through the cited judgments at the bar, we found Writ Petition No,1910 of 1997 not maintainable being against the concurrent findings of fact recorded by the two Courts below and in our writ jurisdiction, we cannot indulge ourselves in the disputed question of fact. The two Courts below have concurrently held that the welfare of minor Adnan is lying with his mother Mst. Shaheen Begum.
10. As regard the custody of minor daughter Mst. Yamna aged about 8/9 years, it is not disputed that under the Injunction of Islam, mother has been held entitled for her custody till the age of puberty. This is also a fact that the trial Court after evaluating the evidence by the parties granted her custody to the mother. The learned Judge appellate Court was impressed from the second marriage of Mst. Shaheen and relying upon section 352 of Muhammadan Law held that after second marriage the mother has lost her right of custody over the minor female child. In the cited judgments which was also relied upon by the lower appellate Court, the welfare of the child was taken into consideration and after holding that the father can provide better treatment as against their mother, the custody of minor was granted to the father but in the instant case both the spouses of the dissolved marriage has contracted their second marriage. The two minors are in the custody of mother since their birth till today and the father is in fact stranger for them as compared to their mother.
11. In Mst. Rubia Jilani's case 1999 SCMR 1834 it was observed as follows:-- "No doubt, father is a natural guardian and mother in case of male children looses right of Hazzanat after they attain age of seven (7) years. However, paramount requirement which must be kept in view for determining future arrangement of custody or temporary residence of the minors revolves around their welfare. It is settled principle that Guardianship Courts while dealing with matters relating to custody of minor children exercise parental jurisdiction. Therefore, strict adherence to procedure or rules is not pressed into service. Evidently rigid formalities and technicalities overcoming minor's welfare can be safely ignored."
12. In Muhammad Bashir's case PLD 1953 Lah. 73, it was observed as follows:--- "All rules of Muhammadan Law relating to the guardianship and custody of the minor are merely the application of the principle of benefit of the minor to diverse circumstances. Welfare of the minor remains the dominant consideration and the rules only try to give effect to what is minor's welfare from the Muslim point of view."
13. Mst. Yamna who has not attained the age of puberty and is only 8/9 years old shall remain in Hazzanat of her mother under the injunction of Islam. After contracting a second marriage she being a teacher could provide better welfare to her daughter as against her father who has contracted a second marriage. The case-law cited at the bar guarantees the right of a mother regarding the Hazzanat of minor children subject to the welfare of children.
14. From the discussion made above, we arrive at the conclusion that Writ Petition No,1910 of 1997 filed by Jaffar Khan, the father, for custody of minor son Adnan is found not maintainable in view of the concurrent findings of the two Courts below regarding the welfare of the minor son and is, therefore, dismissed with no order as to costs.
15,. The Writ Petition No,784 of 1998 filed by the mother of a minor child namely Mst. Yamna aged about 8/9 years for the custody of the minor daughter and declaration of the order of the District Judge, Swabi, dated 21-5-1998 as illegal, without jurisdiction is accepted in view of the welfare of minor which is found lying with the mother. This writ petition is therefore, allowed. The order of the District Judge, Swabi dated 21-5-1998 is declared as illegal, without jurisdiction and of no legal effect. Mst. Shaheen, mother, who is keeping the custody of minor shall continue till her attainment of age of puberty.
16. Before parting with the case we would like to observe and direct that Jaffar Khan, the father of minors would be competent to apply to the Judge Family Court concerned for a meeting with his children, who shall summon the children for such a meeting and Mst. Shaheen, the mother of children shall be bound to produce the children for such a meeting on the direction of the Family Court. No order as to costs.
Order accrodingly