Through this writ petition the petitioner calls in question the order dated 20-2-2003 passed by learned District Judge, Jhelum dismissing the appeal of the petitioner filed against the order dated 11-7-2002 of the learned Guardian Judge, Jhelum whereby he allowed the application of Abdul Rauf under section 25 of the Guardian and Wards Act by observing that it would be in the welfare of the minors if their custody is delivered to Abdul Rauf who is real father of the minors.
2. The learned counsel for the petitioner on the strength of the case reported as Mst. Jannat v.
Abdul Hamid and others 1984 CLC 345 contends that the petitioner being mother has been deprived of the custody of the minors namely Noshaba (daughter) and Mad Rauf (son), born on 18-10-1994 and 28-10-1996, respectively, on the only ground that the petitioner real mother of the minors has remarried with Imtiaz Ahmad who is stranger to the minors. He contends that while granting custody of the minors to the father, both the Courts below have not considered the fact that the welfare of the minors lies with the mother, the petitioner; that in any case the son and daughter, having not attained the age of 7 years and age of puberty, respectively, the respondent Abdul Rauf is not entitled for their custody under the Muslim Personal Law.
3. On the other hand, the learned counsel for the respondent Abdul Rauf, who has entered appearance at pre-admission stage, contends that mother of the minors has remarried with Imtiaz Ahmad who is stranger to the minors; second husband Imtiaz Ahmad did not appear in the witness-box; the respondent Abdul Rauf has permanently settled in Pakistan and would not go abroad when the custody of the minors has been handed over to him. He has relied on the following case law:-- Mst. Parveen Akthar v. Muhammad Ashraf 1986 SCM R 1944.
Mst. Bushra Mughal v. Addl: District Judge, Kharian and others 1999 M LD 2960 Lahore.
Mst. Aisha v. Manzoor Hussain and others PLD 1985 SC 436.
4. I have considered the arguments of the learned counsel for the parties and perused the record with their assistance. Mst. Noshaba (daughter) and Mad Rauf (minor son) were born on 18-10-1994 and 18-10-1996, respectively. It is also not disputed that the real mother Mst. Shumaila has remarried with Imtiaz Ahmed and cut out of the said wedlock with Imtiaz Ahmad a child has born.
Said Imtiaz Ahmad, husband of the petitioner, is stranger to the minors. It is also an admitted fact that Mad Rauf did not get admission in the School despite the fact that he is of 6-1/2 years of age.
Under the Personal Law, respondent Abdul Rauf is not entitled for the custody of the minors, but the welfare of the minors is the supreme consideration. The petitioner has admitted that there are three deaf and dumb schools in the District Jhelum. The minors have not been admitted in school.
Respondent Abdul Rauf, present in Court, has categorically made a statement that he has returned from Dubai to look after his minor children and he shall not leave them alone. In. case reported as Mst, Bushra v. Addl. District Judge, Kharian 1999 M LD 2960 the mother lost the custody of the minor on remarriage with the stranger. This was the rule enunciated by the Honourable Supreme Court in the case reported in PLD 1985 SC 436 (supra). In the case reported as Mst. Parveen Akhtar v.
Muhammad Ashraf 1986 SCM R 1944 (supra), the Honourable Supreme Court of Pakistan while interpreting section 25 of the Guardian and Wards Act, 1890, and the welfare of the minor has ruled:-- "4. We have heard the learned counsel. We were told that Naseem Akhtar had attained majority and, therefore, no question regarding his custody in any manner is in issue. However, the case was pressed for the other two minor children. It may be, mentioned that mother of the children has married a stranger, therefore, in these circumstances, we do not think that this is a fit case for grant of leave to appeal by this Court."
The judgment relied upon by the learned counsel for the petitioner reported as Mst. Jannat v. Abdul Hamid and others 1984 CLC 345 is not applicable to the facts and circumstances of the present case, because in the case in hand not only the petitioner being mother is disqualified to have the custody of the minors on the ground that she has married Imtiaz Ahmad who is stranger to the minors, but also that there is concurrent finding of facts recorded by the two Courts of competent jurisdiction on the basis of evidence that welfare of the minors, namely, Noshaba (daughter) and Mad Rauf
(son) lies in handing over the custody to their father Abdul Rauf.
For what has been discussed above, I see no reason to interfere in the well-reasoned judgments of both the Courts below, and dismiss this Constitutional petition.
Before parting with this judgment, I may observe that respondent Abdul Rauf, present in Court, has categorically stated that he shall not proceed abroad/Dubai leaving the minors as he has settled in Pakistan. In this view of the matter, the petitioner may move to the Guardian Judge for custody of the minors, if respondent Abdul Rauf proceeds for abroad in connection with his employment after getting the custody of the minors.