' Petitioner Mst. Nasim Kausar and respondent Muhammad Saleem were married on 20-11-1992. Out of the said wedlock minor child, namely, Muhammad Aaqib Saleem was born on 26-9-1993.
Respondent No,1 (Muhammad Saleem) divorced the petitioner Mst. Nasim Kausar on 25-10-1995.
The petitioner took shelter in her parents' house alongwith the minor. The petitioner got admitted minor Aaqib Saleem in Lahore Nursery School, who remained in that School from 23-7-1997 to 10-1- 1998. It is stated that the custody of the minor Muhammad Aaqib Saleem remained with the petitioner and no maintenance allowance was provided by the respondent. According to the petitioner, in January, 1998, Muhammad Salem, respondent, father of the minor, visited the house of the petitioner and took alongwith hint with the promise to bring him back but he did not fulfill his promise, therefore, the petitioner filed an application for custody of the minor in the Court of Guardian Judge in December, 1998. It was contended by the petitioner that the minor was in illegal custody of the respondent; the respondent after divorce to the petitioner contracted another marriage and the minor was at the mercy of his step-mother. It was further stated in the application that neither minor Aaqib Saleem was being properly maintained nor he was properly educated by the respondent; the atmosphere of the house of the respondent was not good. Finally it was stated that the welfare of the minor demands that his custody be handed over to the petitioner.
2. The application was resisted by Muhammad Saleem, respondent. It was contended that minor Muhammad Aaqib Slaeem alias Heera never remained in the custody of the petitioner after divorce; the story narrated in the application was false and concocted; the minor was studying in Foundation Model School. Punj Peer Road, behind Neelam Cinema, Chah Miran, Lahore: it was settled in the Punchayat; that the minor would remain with the respondent: the petitioner tried to get forcible custody of the minor through police and the Guardian Judge passed an order dated 3- 11-1998 to the effect that the petitioner could not take the custody of the minor through S.H.O.
Without due course of law. It was admitted that the respondent contracted a second marriage with the daughter of his aunt who was also related to the minor Aaqib Saleem. It was contended that the respondent was entitled to the custody because the welfare of the minor lies with the respondent as the petitioner has also contracted marriage after getting divorce from the respondent.
3. From the divergent pleadings of the parties, the learned Guardian Judge proceeded to frame the following issues:--
(1) Whether it is in the interest and welfare of the minor that the custody of the minor be given to applicant? OPA?
(2) Relief.
4. The learned Civil Judge/Guardian Judge, Lahore while dismissing the application through the order dated 10-1-2001 observed that on the basis of agreement Exh.D.W.1 between the parties it was settled that the minor would remain in the custody of the respondent and further that the minor is being brought up by the respondent properly; he is enjoying good health and is studying in the School and in view of the said circumstances, welfare of the minor demands that his custody should not be handed over to the petitioner. Against this order of the learned Guardian Judge dated 10-1-2001, the petitioner filed an appeal. The . Learned Additional District Judge was of the view that due to strained relations between the parties the respondent had divorced the petitioner on 25-10-1995; at that time, an agreement was written which was Exh.D.1; the minor has remained in his custody; it was settled that he will remain with him; he is looking after him in a proper manner; the minor is studying in a Scholar Foundation Model School; he is also receiving religious education; the petitioner has contracted second marriage; a child was born out of the second marriage but he died due to her negligence; the minor has crossed the age of 7 years. The appeal filed by the petitioner was dismissed by the learned Additional District Judge on 28-7-2001.
5. The learned counsel for the petitioner contends that the agreement Exh.D/1 is void between the parties and could not have been relied upon by both the Courts below. She relies on:-- "1987 MLD 2940 Karachi Mst. Ghazala Yamin v. Muhammad Yamin and others and PLD 2002 SC 267 Mst. Hameed Mai v. Irshad Hussain."
' She further contends that right of father to claim the custody of minor of 7 years of age or above was not absolute one. Welfare of minor always is a paramount consideration. Relies on Mst. Firdous Iqbal v. Shifaat Ali and others (2000 SCMR 838). Further contends that the wish of minor is always relevant to see the welfare of the minor. Further states that Muhammad Saleem, respondent has remarried and out of the second weldlock a child has born. She relied on Capt. S.M. Aslam v. Mst.
Rubi Akhtar (1996 CLC Karachi 01) to emphasis that the welfare of the minor will adversely affect when the minor will be brought up by the stepmother.
6 . On the contrary, the learned counsel for the respondents contends that the concurrent finding of facts recorded by two Courts below of the competent jurisdiction cannot be interfered with by this Court in exercise of writ jurisdiction under Article 199 of the constitution. He states that the Court below has appreciated the evidence and has rightly come to the conclusion that welfare of the minor Muhammad Aaqib Saleem lies with the respondent Muhammad Saleem. Relies on:-- ' 1987 CLC 2356 Mst. Sakina Bibi v. Muhammad Bakhsh and others; 1988 CLC 1835 Mst. Sharifan Bibi v. District Judge, Bahawalpur and 2 others; 1988 MLD 1055 Mst. Saeeda Begum v. The IVth Additional District Judge (South) and others and 1988 MLD 1918 Mst. Saeeda Begum and others v. III-Senior Civil Judge (West) Karachi and others.
' He elaborates his contention and states that the petitioner is estopped by her conduct to claim the custody of the minor because at the time of divorce the parties had reached to the agreement Exh.D/1 dated 25-10-1995 that the minor would remain in the custody of the respondent/father. This agreement is not immoral and the petitioner has waived her right of Hizanat. Relie's on Mst. Nazir v.
Hafiz Ghulam Mustafa and others (1981 SCMR 200). The minor is more than 7 years of age, and under the Personal Law coupled with agreement between the parties, the father is entitled for custody of minor son. Both the Courts below rightly decided that the welfare of Muhammad Aaqib Saleem minor lies in the custody to respondent Muhammad Saleem. Relies on Mst. Surraya Bibi v.
Abdur Rashid (1982 SCMR 892). Finally the learned counsel argues that the petitioner was unable to prove that minor Muhammad Aaqib Saleem was removed from her custody illegally in January, 1998 because she kept mum and did not file the petition for custody for 11 months.
7. During argument, minor Muhammad Aaqib Salim has been produced in this Court. He is of about ten years of age now having quite mature understanding. He has recited Kalma Tayyaba in the Court and states that the Muslim offer five time prayers in a day. He further states that he is now studying in the Grammar Foundation School since 1998. Prior to that he was admitted in Lahore Nursary School when he was living with his mother. The minor has been asked thrice with a span of 4/5 hours about his wish to live with his mother or father, he is consistent in his statement that he will live with his mother. The minor further states that presently he was living with his paternal aunt as his paternal uncle has died.
8. Both the parties after divorce have contracted second marriage and have issues from second wedlock. They could have claimed the custody of the minor because the minor is more than seven years of age under the Personal Law, but welfare of the minor is paramount consideration. To determine the question of custody, notwithstanding the right of father to get the custody after 7 years of age of the male minor child, the learned trial Court as also the learned Appellate Court granted the custody of the minor to father without considering the statement of the minor. The minor has stated in Court that he is happy with his mother and would not go to his father. By now it is well-settled that while disposing of the application under sections 17 and 25 of the Guardian and Wards Act the Supreme consideration should be the welfare of the -minor, coupled with his own wish as it has been held in Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others (1985 SCMR 1367), relevant para. Therefrom is reproduced below:-- "6. From the perusal of the order of the Guardian Judge, it seems that the main consideration that prevailed with him was the factum of second marriage contracted by the petitioner with a stranger. Prima facie, however, the learned Judge did not give due regard to the wishes of the minor himself and seems to have disregarded the same on considerations, which, in our opinion, require re-examination. It is axiomatic that in the matter of appointment of a guardian the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a Court of law for the decision of such cases. It was stated before us that the minor is now thirteen years of age and he appeared to us to be capable of making an intelligent preference on the question in dispute. The other point that requires consideration is whether in case of a male child, marriage of his mother with a stranger would be a relevant consideration for depriving her of the custody of the minor."
9. 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 Hazzaant 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 maters 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."
10. Muhammad Bashir's case (PLD 1953 Lahore 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."
11. As has been observed above, before this Court the minor was produced and on inquiry he replied that he is happy with his mother and does not want to go with the respondent/father.
Respondent Muhammad Saleem shows his apprehension that minor Muhammad Aaqib Saleem has been tutored because he remained with mother for 2 days. For my own satisfaction and to see the preference of the minor, he has been examined, in the light of material placed on the record, in Chamber. He states that he may be given in the custody of the mother.
12. Both the Courts below have non-suited the petitioner on the ground that mother has relinquished her right of Hazzanat by entering into 'an agreement Exh.D.1 and that the minor Muhammad Aaqib has attained the age of 7 years. They have not considered the welfare of the minor putting the claim of both the parties in juxtaposition.
13. On the touchstone of the above-stated case-law and the fact that Muhammad Aaqib Saleem is now ten years of age and capable of performing intelligent preference and has given his preference to live with his mother, which cannot he ignored. Both the parties after divorce have contracted second marriages. On the one hand, the minor has to live with his step-mother, while on the other with his step-father and in both the eventualities he has to suffer. Keeping in view the circumstances of the case and the fact that the respondent is a shopkeeper and is doing the business of spare parts who may not give much time to the minor who will remain with the step- mother at home, it is observed that the minor can impart love and affection to minor Muhammad Aaqib Saleem alongwith her other children born from the second wedlock.
14. Much stress has been given on the point by the learned counsel for the respondent that the custody of the minor has been handed over to him by the petitioner on the basis of private agreement Exh.D/1 and now she cannot assert her right of custody. The argument of the learned counsel is not sustainable, because neither custody of minors in all cases can be effectively settled by private agreement nor this principle of estoppel is of universal application. It depends upon case to case, and the circumstances in which the agreement between the spouses regarding custody of the minor children can be made basis for the decision. This question of handing over the custody of minor through compromise visa-vis welfare of minor came up for consideration in case reported as Mst. Hameed Mai v. Irshad Hussain (PLD 2002 SC 267) and it has been ruled:-- ' "The Court's power with regard to custody of minor are in the nature of parental jurisdiction.
Therefore, the Court must act in a way a wise parent would do. The expression 'welfare' shall be construed in a way as to include in its compass all the dominant factors essential for determining the actual welfare of the minor. Technicalities of law are not adhered in such type of cases. Since birth minor remained with the maternal grandmother and suddenly to ask her to live in different atmosphere would be if not impossible at least very difficult for her".
15. The next question for consideration would be whether in exercise of Constitutional jurisdiction interference in the findings of facts can be made by this Court or otherwise. Principle of law discussed by the Hon'ble Supreme Court in case of Mahmooda Begum v. Taj Din (1992 SCMR 809) can be invoked, wherein it has been laid down that finding of facts recorded by a Tribunal of special jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there had been a serious misreading or misappreciation of evidence on the part of Tribunal or there had been failure on its Dart to take into consideration material facts or to apply statutory law or any principle or rules of law, as laid down by the superior Courts.
16. Thus, for the foregoing reasons, I am of the considered opinion that both the Courts below, have passed the impugned judgment without taking into consideration the intelligent preference of the minor, evidence on the record that the petitioner/mother can look-after the welfare of the minor Aaqib Saleem better than respondent No,1., as such the same are without lawful authority.
Consequently, writ is issued declaring the impugned judgments as of no legal effect. Custody of Muhammad Aaqib Saleem, minor, present in Court, is handed over to petitioner Mst. Naseem Kausar.
' Before parting with the judgment, it is observed that the Judge, Family Court/Guardian Judge shall arrange fortnightly schedule of meeting of minor Muhammad Aaqib Saleem with his father Muhammad Saleem, respondent, and also for Eid holidays, winter and summer vacations.
Disposed of.