Brief facts giving rise to this Constitutional petition are that an application under section 25 of the Guardians and Wards Act was filed by the petitioner for custody of his minor. sons (respondents Nos,4 and 5) against respondent No,3, his ex-wife. Vide order dated 8-5-2000 it was partly accepted by Family Judge, Sahiwal (respondent No,2) to the extent of Muhammad Waqas (respondent No,4), whose custody was directed to be given to the writ petitioner.
2. On appeal filed by respondent No,3, the said order was set aside by Additional District Judge, Sahiwal (respondent 'No,1) vide judgment dated 10-3-2001.
3. Through this Constitutional petition Muhammad Javed seeks the said judgement of Additional District Judge, Sahiwal to be declared as without lawful authority and of no legal effect.
4. Learned counsel for the petitioner had urged that:
(i) The impugned judgment is against law and facts.
(ii) It is arbitrary,. capricious 'and is the result of non-reading and misreading of evidence and that;
(iii) Under Muslim Law petitioner is entitled to the custody of his minor son who had admittedly attained the age of seven years whereafter mother's right of custody had extinguished.
5. I have heard the learned counsel for the petitioner and I have also perused the writ petition, and all the annexures appended therewith.
6. High Court in the exercise of Constitutional jurisdiction cannot sit as a Court of appeal and would interfere only where the subordinate Court had exceeded its jurisdiction or acted without jurisdiction. In the present case appeal against judgment of Family Court/Guardian Judge on a petition under section 25 of the Guardians and Wards Act, is provided before the District Judge.
Additional District Judge to whom the appeal was entrusted was, therefore, competent to hear and decide the same either way. The said appellate Court, therefore, had lawful authority to pass the impugned order. When the Court possessed jurisdiction, finding of fact recorded by it cannot be disturbed simply on the ground that another view was possible on the same evidence, unless the finding is based on no evidence, is fanciful or arbitrary.
7, A perusal of the impugned judgment coupled with the evidence recorded in the case shows that the Appellate Court had properly examined and assessed evidence and its findings are based on evidence.
8. The writ petitioner had admitted, during his cross-examination that suit for maintenance was decreed in favour of the minors but he did not pay the maintenance as he was poor and destitute person; he also admitted that mother of the minor is a woman of good character. It was proved on record that minors were admitted in school by their mother and were getting proper education that mother of the minors had obtained divorce from her second husband; the petitioner had remarried and has several children from his second wife and that since birth the minors are living with their mother (respondent No,3).
9. It is true that the Sunni Muslim Law right of custody of a male child who attains the age of seven years, ex-facie, is that of father but it is not an absolute right and welfare of minor is always of paramount consideration.
10.A father may disentitle himself to custody on account of his conduct in the light of the facts and circumstances of each case.
11. In the present case the father (writ petitioner) had contracted second marriage and had several children from his new marriage; he himself admitted that he was poor and destitude; the Appellate Court was mindful of the fact that right from birth the minors were living with their mother hence uprooting one of them from his familiar surrounding, though permissible, could not be done in this case as there was nothing on record to suggest that minor (respondent No,4) would be given beneficent treatment by the step-mother. It was rightly observed by the Appellate Court that it was not in the welfare of the minor to face his step-mother but his interest was to remain with his real mother and it was harsh and unjust to deprive him of the company of his other brother because since birth both the brothers had been living together.
12.Neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked by the Appellate Court. Learned counsel for the petitioner could not draw my attention to any portion of evidence which was overlooked or misread. The impugned judgment is entirely reasonable. No legal infirmity could be pointed out in the impugned judgment justifying interference in the exercise of Constitutional jurisdiction.
For the reasons stated above, the writ petition is hereby dismissed in limine.