2020 C L C 1340
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
GULZAR KHAN----Petitioner
Versus
Mst. RAHIMA and 3 others ----Respondents
Constitution Petition No.(S)137 of 2018, decided on 7th November, 2019.
(a) Guardians and Wards Act (VIII of 1890) ---
----S.25 ---Custody of minors ---Welfare of minors ---Financial status of mother ---Scope ---
Father's petition for custody of two male minors and one female minor was accepted to the
extent of male minors while the cust ody of female minor was entrusted to her mother till
puberty---Validity ---Petitioner/father was a contractor who remained out of the house most
of the time for business purposes ---Petitioner had failed to point out the person who would
look after the baby girl at his home ---Minor was about 4/5 years of age and in such age the
attention of mother for capacity and intellectual development of female minor was much required ---Association of female children with their mother was more important as compared
to the father ---Poor financial status of mother did not disentitle her from the custody of the
minor ---None could take care of minors more than their real mother for being their first
institution and depriving minors of the company of their real mother would cre ate
deprivation in their lives which could not be restored back---No misreading or non- reading
of evidence could be attributed to the judgments of the courts of below ---Constitutional
petition was dismissed.
(b) Guardians and Wards Act (VIII of 1890) ---
----S.17 ---Guardian, appointed of ---Matters to be considered by the Court in appointing
guardian ---Welfare of minor ---Scope --- Mother, under Muslim Personal Law, is entitled to
the custody of daughter even after she has attained the age of puberty and until she is
married, whereas the father can claim custody of his male child after seven years ---Welfare
of the minors is to be determined while keeping in view their mental, intellectual, moral and
spiritual well being ---Guardian Court has to look into qualifi cation of parents, the age,
gender, religion of minor, the character and capacity of the proposed guardian and his/her nearness of kin to the minor as provided under S.17 of the Guardians and Wards Act, 1890---Welfare of minor prevails as the supreme consi deration for deciding the issue of her or his
custody.
(c) Guardians and Wards Act (VIII of 1890) ---
----S.17 ---Matters to be considered by the Court in appointing guardian ---Financial status of
mother ---Scope ---Poor financial status of mother does not di sentitle her from the custody of
minors.
(d) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction ---Misreading of evidence---Non -reading of
evidence--- Jurisdictional defect--- Scope ---Appraisal of evidence is the function of courts
below and if the findings are based on proper appraisal of evidence then the same cannot be
interfered with lightly, in exercise of constitutional jurisdiction--- Party approaching the High
Court under Art. 199 of the Constitution has to demonstrate that there is gross misreading or
non- reading of the evidence or any jurisdictional defect floating on the surface.
Muhammad Ilyas Mughal for Petitioner.
Date of hearing: 25th October, 2019
JUDGMENT
ROZI KHAN BARRECH, J. ----Petitioner Gulzar Khan filed an application under
Section 25 of Guardians and Wards Act, 1890 for custody of minors namely Jameel Ahmed
(aged 8 years), Essa Khan (aged 6 years) and Ambarin (aged 5 years) before the learned Family Judge, Sibi (trial court). The application was contested by respondent No.1 by means
of filing written statement on legal as well as factual grounds. Out of pleadings of the parties the following issues were framed:
"1. Whether the court has no jurisdiction to entertain the suit?
2. Whether the app lication in the present form is not maintainable in law?
3. Whether the welfare of the minors is custody of applicant or the respondent?
4. Whether the applicant or the respondent is entitled for the custody of the minors or of who?
5. Relief?"
After fram ing the issues, the trial court directed the parties to produced their
respective evidence. Petitioner produced two witnesses and got recorded his statement on oath. In rebuttal respondent No.1 produced two witnesses and finally got recorded her statement on oath. After hearing arguments from both the sides the trial court allowed the
application filed by the petitioner to the extent of minor sons namely Jameel Ahmed (aged 8 years and Essa Khan aged 6 years) by giving their custody to petitioner, while it w as held by
the trial court that female child namely Ambarin aged 5 years being a female child shall remain in custody of her mother (respondent No.1) till her puberty. The petitioner aggrieved from the said judgment to such extent filed an appeal under Sec tion 14 of Family Courts Act,
1964 before the learned District Judge, Sibi Division Sibi (appellate court), which was dismissed vide judgment dated 12th June 2018. Hence this petition.
2. Facts in brief giving rise to the dispute between husband Gulzar Kha n and his wife
Mst. Rahima are that they came in bondage as husband and wife about twelve years ago.
From wedlock they had two sons namely Jameel Ahmed aged 8 years and Essa Khan aged 6 years and one daughter Ambarin aged 5 years. It was a marriage on (Wat ta-Satta) but on
attaining puberty Gulzar Khan's sister refused to marry brother of Mst. Rahima, thus
matrimonial disputed erupted between petitioner and his wife. In result whereof respondent
Mst. Rahima, along with her children were detained by her paren ts. No settlement came to
solve the problem, resultantly dispute between petitioner and respondent No.1 arose for
custody of children
3. We have considered the arguments advanced by learned counsel for the petitioner and
have also perused the available record with his valuable assistance.
4. In the matter of custody of minors, the paramount consideration is welfare of the
minors and the courts have to adjudge that out of father and mother who is the best suited for the custody of minors. Under Muslim, Pers onal Law, mother is entitled to the custody of
daughter even after she has attained the age of puberty and until she is married, whereas the father can claim custody of his male child after seven years. The welfare of the minors is to be determined while k eeping in view their mental, intellectual, moral and spiritual well
being. The Guardian Court has also to look into qualification of parents, the age, gender, religion of minor, the character and capacity of the purposed guardian and his/her nearness of kin to the minor as provided under Section 17 of the Guardians and Wards Act, 1890 (the
"Act"). The welfare of minor in all cases prevails as the supreme consideration for deciding the issue of her or his custody.
5. The record transpires that the petitioner himself is a contractor and remains out of
home most of the time for business purposes. The petitioner has also failed to point out that who will look- after the baby girl at his home. Even otherwise, the minor is about 4/5 years of
age in such age the att ention of mother for capacity building and intellectual building of
female minor is much required and in this age if the minor is departed from her mother a flaw would come in her upbringing. It is also reflected from record that the minor is a female child and respondent No.1 (mother) has been looking after her minor daughter ever since her
birth and maintaining good environment. It also goes without saying that there is no substitute of mother's lap, therefore an association for female children with their mother is
much important, as compared to the father. Further the poverty and poor financial status of mother, does not disentitle her from the custody of the minor.
The Superior Courts in number of judgments have held that there is no substitute of
mothe r and no one could take care of minors more than their real mother for being their first
institution and depriving minors of the company of their real mother would create deprivation in their lives, which could not be restored back.
6. The nutshell of the above discussion is that there is no misreading or non- reading of
the evidence which can be attributed to the judgments passed by both the courts below. Neither there is any jurisdictional defect which requires invocation of Constitutional Jurisdiction of this Court in exercise of jurisdiction conferred under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973. Appraisal of evidence is the function of
courts below and if the findings are based on proper appraisal of evidence then the same cannot be interfered with lightly in exercise of writ jurisdiction. The party approaching the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has to demonstrate that there is gross misreading or non- reading of the evi dence or any
jurisdictional defect floating on the surface but in the instant case all these preconditions are
clearly missing, therefore, the petition in hand is devoid of any force which is dismissed with
no order as to costs.
SA/155/Bal. Petition dismi ssed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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