Facts necessary for the disposal of this Constitutional petition are that respondent No,3, Major (R)
Muhammad Asif Latif, filed an application under section 25 of the Guardians and Wards Act, 1890 against his ex-wife Mst. Ambreen, her father and mother for seeking custody of his minor children Afnan (son) and Zishma (daughter) aged about 14 and 11 years respectively. It was alleged that Mst. Ambreen had obtained a decree for dissolution of marriage on the ground of Khula on the condition that in case she contracts another marriage, custody of the minors would be handed over to him. She contracted second marriage on 24-3-2000. It was alleged that it is in the interest and welfare of the minors that their custody should be given to him as he was also their natural guardian.
2. The petition was opposed by mother of Mst. Ambreen viz Dr. Ruqiya Shaukat, respondent No,3, in that petition, who happens to be maternal grandmother of the minors, on the grounds that minors are in her custody and she is looking after them properly and that due to an accident, the petitioner had become disabled on account of which he was unable to look after the minors.
3. After framing necessary issues and recording evidence, the learned Guardian Judge vide order dated 22-7-2002 accepted the petition.
4. Aggrieved 'thereby Mst. Ruqiya Shaukat filed an appeal against the order of the Guardian Judge.
But it was also dismissed by the learned Additional District Judge, vide judgment dated 9-1-2003.
The finding of the Guardian Judge that it was in the welfare and interest of the minors that their custody be given to their father was affirmed.
5. The aforesaid orders of the Guardian Judge and the Additional District Judge arc assailed in this writ petition by Dr. Ruqiya Shaukat, as illegal, void and without lawful authority and are prayed to be declared as such on the grounds that both the Courts below did not properly weigh the pros and cons of the case inasmuch as they failed to appreciate that minor girl required supervision of female; the children were being properly looked after and brought up by her, that she had sufficient funds for their education and maintenance; wish of the minors was neither asked nor considered in spite of the fact that they were sensible enough to give their choice and preference; both the Courts had ignored that under Muslim Law custody of a girl who has not attained puberty, belongs to mother's mother, in default of mother and that the petitioner is the maternal grandmother of the children. Learned counsel for the petitioner had placed reliance on: ' Section 353 of Mahomedan Law by D.F. Mulla.
Mst. Salima Bibi v. Sharif Hussain 1979 CLC 417, Lahore ' According to which, in default of mother, maternal grand mother is entitled to the custody of girl who has not attained puberty.
Abdur Rashid v. Tasneem Qausir NLR 1980 Civil Lahore 64 ' Wherein order of Guardian Judge holding that it was in interest of the minor if he continues to remain in the custody of mother after attaining the age of 7 years was upheld by the High Court and father's appeal was dismissed.
Kalsoom Bibi v. Muhammad Saeed NLR 1980 AC 483 Lahore ' In this case, after re-examination of the entire evidence, the High Court reversed judgment of Guardian Judge given in respect of custody of a male child of more than 10 years by holding that it was not in the welfare of the minor to remove him from the custody of mother and in case the mother contracts another marriage father would be entitled to apply for the custody of the minor child, and Bashir Ahmad v. Mst. Rehana 1978 SCM R 192 (Supreme Court of Pakistan)
' In this case after divorce between the spouses, female minor was left in the custody of maternal grandparents. It was held that mere fact that all expenses for maintenance and education of minor were borne by husband does not by itself entitle him to the custody of minor before she attains puberty.
6. Learned counsel for the petitioner has been heard. Writ petition and its annexures perused.
7. Assessm ent of evidence and to determine the interest and welfare of the minors regarding their custody is the function of the Guardian Court and its Appellate Court which are vested with exclusive jurisdiction to decide such matters. Powers = of High Court in Constitutional jurisdiction are not analogous to those of an Appellate Court. It can quash an order passed by the subordinate Court as without lawful authority but cannot substitute its own judgment for that of the subordinate Court by reappraising and re-examining the evidence on the ground that another view is possible on the same evidence.
8. Finding given by the Guardian Judge that it was in the interest and welfare of the minors to be given in the custody of their father was finding of fact which is supported by sound and plausible reasoning given in pares Nos.8, 9 and 10 of the judgment. Said finding was affirmed in appeal by the learned Additional District Judge after perusing record and reappraising the evidence and reasons for affirming the said finding are stated in para No,11, of the impugned judgment recorded by the learned Additional District Judge.
The order of the Guardian Judge and the judgment of the learned Additional District Judge show that findings are based on evidence.
9. It is well-settled that the findings on question of fact recorded by Courts below can neither be substituted nor opinion regarding adequacy of evidence can be given in writ jurisdiction and concurrent findings cannot be successfully assailed in Constitutional jurisdiction.
10. Learned counsel for the petitioner has not annexed with the writ petition copy of evidence hence it is not possible to consider if any material piece of evidence was overlooked or misread by any of the two Courts below.
11. A perusal of the impugned order and judgment reveals that they are neither arbitrary nor perverse but are entirely reasonable. No jurisdictional error in the same could be pointed out.
12. It is true that under Muslim Law, in default of mother maternal grandmother is entitled to the custody of a girl who has not attained puberty but it is also equally true that under the same law father is entitled to the custody of a male child over the age of 7 years and welfare of the minor is to be presumed with the person who is entitled to the custody under the Muslim Law. However, such presumption is rebuttable and it can be shown that in fact, welfare of minors lay with the person other than the one who is entitled to the custody under Personal Law and Court can refuse custody to the person who is entitled to it under Muslim Law because right of custody is not an absolute right and welfare of minors is of paramount consideration. Moreover, Guardians and Wards Act, 1890 does not provide that custody of minors be decided on the basis of different schools of jurisprudence with reference to their age and custody.
13. In this case father was entitled to custody of male child whereas maternal grandmother (petitioner) was entitled to the custody of minor girl under the Muslim Law; however, custody of both the minors was ordered to be given to the father presumably for the reasons that it was not in the interest of the minors (brother and sister) to live apart from each other in different environments.
14. The authorities referred by the learned counsel for the petitioner via NLR 1980 Civil Lahore 64, NLR 1980 AC 483 Lahore and 1978 SCM R 192, relate to Appellate jurisdiction and as a Court of appeal evidence could be re-examined, re-assessed and reappraised for arriving at its own conclusion by the Appellate Court and findings recorded on question of fact by the subordinate Court could be substituted.
15. I may be excused for repeating that in writ jurisdiction High Court is not competent to undertake the aforesaid exercise of reappraising the evidence in order to come to its own conclusion neither finding on question of fact recorded by Courts below can be substituted.
16. Reverting to the objection that the Courts below did not obtain preference or choice of the minors it may be observed that section 17(3) of Guardians and Wards Act, 1890 provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference.
17. By the use of the words "may consider" the legislature has indicated that it is not imperative to consult the wish or having consulted to give effect to it. Hence if the minors were not consulted by the Courts below regarding their choice and preference, said omission would not be deemed to have made the orders passed by them as void and without jurisdiction.
18. Interference in writ jurisdiction is not warranted because the impugned orders were passed by Courts of competent jurisdiction, it was within their exclusive jurisdiction to believe or disbelieve evidence and plausible reasons are given in the impugned order and the judgment respectively passed by the Guardian Judge and the learned Additional District Judge, in support of conclusions arrived at.
19. For the foregoing reasons, this petition being devoid of any merit is hereby dismissed in limine.