' The petitioner was married to respondent No,1 on 22-5-1981. From this wedlock, the following children were born:-- Name Date of birth
1. Miss Sehrish Tahir2-7-1982
2. Miss Sumbal Tahir24-1-1986
3. Master Bilal Tahir2-5-1991
2. On account of various matrimonial disputes the petitioner divorced respondent No,1 on 2-7-1997.
3. The petitioner who is employed as Captain in the Pakistan Navy was at the relevant time residing in the Pakistan Navy Central Mess Sector B.8, Islamabad while respondent No,1 alongwith three minor children was residing in the residential accommodation allegedly provided by the petitioner.
The petitioner filed a suit under section 25, Guardians and Wards Act, 1890 for the custody of the minor children on 3-7-1997. Alongwith the petition, the petitioner also filed an application under section 12 ibid for the interim custody of the minors.
4. The Judge Family Court/Guardian Judge who was seized of the matter passed an interim order on 10-7-1997 whereby it was decided that the minor daughters shall remain in the custody of the petitioner while the minor son Bilal Tahir shall remain in the custody of the respondent No,1 so however, that the parties shall not remove the minors outside the jurisdiction of the Court. This was to be operative till the decision of the suit under section 12, Guardians and Wards Act.
5. The suit was contested by respondent No,1 through filing of a written statement. The claim of the petitioner was denied. It was denied that it was in the welfare of the minor son to remain in the custody of respondent No,l.
6. From the pleadings of the parties, the trial Court framed the following issues:-- Issues:
(1) Whether the petition is not maintainable in its present form? OPP.
(2) Whether the petition has been filed with mala fide intention? OPR.
(3) Whether the respondent is an illiterate woman of immoral character?
(4) Whether the welfare of the minor is with the petitioner? OPA.
(5) Relief.
7. The petitioner himself appeared as A.W.1 while the respondent appeared as her own witness as R.W.1.
8. The learned Mal Court found the material Issue No,4 in favor of the petitioner. While coming to this conclusion, he relied upon the fact that the petitioner is an educated man and is serving as Captain in the Pakistan Navy. It was also observed that the petitioner was drawing substantial salary and was maintaining the children in his custody properly. Both daughters were receiving education in Bahria College, Islamabad which is a reputed educational institution. The learned trial Court also found that as the minor son was more than seven years of age, the presumption according to the personal law of the petitioner was that the welfare of the minor son lies in his custody with the petitioner. It is -noticed that the learned trial Court was everly influenced by the allegations of immorality and the allegation that respondent No,1 was not educated. Quite independently of these considerations, the trial Court nevertheless found the welfare of the minor with the petitioner vide judgment dated 14-4-2000 the respondent No,1 was directed to hand over the custody of the minor to the petitioner.
9. Respondent No,1 filed an appeal against this judgment. The appeal was accepted vide judgment dated 17-5-2000 and the judgment of the trial Court was set aside. The learned Appellate Court engaged its attention solely to the question of the allegations made against respondent No,1 regarding her moral character and regarding her lack of education.
' The learned Appellate Court rejected both these allegations but without adverting to the main question regarding the welfare of the minor. The learned Appellate Court omitted to give any positive findings regarding welfare of the minor son.
10. Mr. Muhammad Bilal, Advocate has been heard on behalf of the petitioner.
11. Respondent No,1 did not appear despite the substituted service. Consequently, she was proceeded against ex parte vide order dated 26-9-2002.
12. The learned trial Court had considered the respective evidence produced by the parties and had come to a positive conclusion that the petitioner is entitled to the.Custody of the minor son. To come to this conclusion the status of the petitioner, his emoluments, the fact that the minor daughters in his custody were receiving good education and were being looked after properly and the age of the minor son were considered. Although the trial Court could have well avoided the observations regarding the character of respondent No,1 yet the judgment of the trial Court is supported by the material on the record so far as the factor regarding the welfare of the minors is concerned.
13. The learned Appellate Court on the other hand found itself focused upon the findings of the trial Court on Issue No,3 albite. The learned Appellate Court did not consider the evidence of audio cassette to be reliable as according to it, the request for producing this cassette in additional evidence had already been rejected by the trial Court. The Appellate Court also found itself influenced by its own conclusion that respondent No,1 could recite the Holy Qur'an. As observed hereinbefore the Appellate Court while reversing the findings of the trial Court based its findings on factors which did not put in juxtaposition the respective qualifications of the parties, so far as it directly related to the welfare of the Minor.
14. The judgment of the trial Court was a well-considered judgment which was erroneously set aside by the learned Appellate Court on extraneous consideration.
15. Resultantly, this writ petition succeeds and the judgment dated 17-5-2000 of the Appellate Court is set aside.