MUHAMMAD ALI vs REHMAT BIBI and 2 otherss
This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was filed by the petitioner-father challenging the concurrent judgments of the Guardian Judge and District Judge dismissing his application for the custody of his two minor sons under Section 25 of the Guardians and Wards Act, 1890. The core legal question concerned the welfare of the minors and whether the mother was disqualified from retaining their custody. The Lahore High Court held that the petitioner failed to prove any disqualification of the mother, that the minors were being properly educated, and that the father had neglected to provide maintenance while being employed in the Army and unable to personally care for them at home. The Court established that a mother cannot be deprived of custody merely on the ground of having no source of income, and concurrent factual findings of lower courts without jurisdictional defects cannot be interfered with in constitutional jurisdiction.
- Whether a mother can be deprived of the custody of her minor children solely on the ground of having no source of income?
- Can concurrent findings of fact by lower courts under the Guardians and Wards Act be interfered with in constitutional jurisdiction under Article 199?
- Whether a father serving in the Army who fails to provide maintenance is entitled to the custody of his minor sons?
- Article 199, Constitution of Islamic Republic of Pakistan 1973
- Section 25, Guardians and Wards Act 1890
' IJAZ AHMAD CHAUDHRY, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the judgment dated 25-9-2004 passed by the learned Guardian Judge, Dunyapur whereby the application filed by the petitioner for custody of two sons has been dismissed and judgment dated 11-12-2004 passed by the learned District Judge, Lodhran through which appeal filed by the petitioner has also been dismissed.
2. Briefly the facts are that on 12-11-2004 the petitioner moved an application under section 25 of the Guardians and Wards Act against Rehmat Bibi respondent No.1 alleging that their marriage was contracted in the year 1985 and two minor sons, namely, Tasawar Mahmood aged about 13/14 years and Ansar Mahmood aged 11/12 years were born out of their wedlock. According to the averments of the petition about 4/5 earlier to its institution respondent had left the house of the petitioner along with the children and now is putting up with her parents, who is not properly looking after the children and they are also not imparting any education whereas the petitioner being an educated person can better look after their welfare, hence he is entitled for their custody.
3. The application was vehemently resisted by respondent No.1 through filing written statement.
According to her she was expelled by the petitioner out of the house in the year 1991, but after that he has not provided even a single penny to them for maintenance allowance and this petition has been filed only as a counterblast as she has filed a suit for maintenance allowance against the petitioner, and that the minors are studying in the school.
4. Out of divergent pleadings of the parties, three issues were framed and the parties led their respective evidence. Petitioner appeared as A.W.1 while respondent No.1 appeared as R.W.1 and also produced R.W.2 Muhammad Ali son of Mian Muhammad. She also got exhibited Exh.R/1 and Exh.R/2.
Through the impugned judgments the application and the appeal filed by the petitioner have been dismissed.
5. The learned counsel for the petitioner has contended that respondent No.1 being an illiterate lady and having no source of income is not properly looking after the minor sons while the petitioner being an educated person can look after them in a better manner, but both the learned Courts below have dismissed the claim of the petitioner on surmises and conjectures.
6. On the other hand learned counsel for respondent No. 1 has opposed this writ petition and supported the impugned judgments.
7. I have heard the learned counsel for the parties and perused the documents attached with this petition including the impugned judgments and the evidence led by both the parties. The main stress of the petitioner is that both the minors were not being provided any education, which has been refuted by the documents Exhs.R/1 and R/2 according to which they were studying in Classes 3rd and 4th respectively. The marriage between the parties still exists. The interest of the petitioner in the children is very much clear that he is ignorant that they were studying in Classes 3rd and 4th.
The petitioner has also failed to show if he has ever given any maintenance allowance to the minor sons during their custody with the mother respondent No.l. Admittedly the petitioner is employed in Army and has not pointed out that who would look after the minors at home during his duty to be performed in different cities. Both the Courts below have given valid reasons for rejecting claim of the petitioner for the custody of the minors as he failed to show any reason for disqualifying respondent No.1 to retain custody of the minor sons being mother, who are studying in school and the petitioner being father is morally and legally bound to maintain them wherever they are living.
Respondent No.1 cannot be deprived of their custody simply for the reason that she has no source of income. Even otherwise, the learned counsel for the petitioner has failed to show any jurisdictional defect or violation of law or settled principles by the superior Courts committed by both the learned Courts below while passing the impugned judgments and admittedly writ petition cannot be heard as an appeal.
8. For the foregoing reasons, I do not find any merit in this writ petition, which is dismissed.
Cited by 3 cases
- Mst. ALIYA FAZIL and anothers vs Mirza FARHAN RUBBANI and anothers 2013 MLD 1631
- IFTIKHAR AHMAD CHISHTI vs DISTRICT JUDGE, CHAKWAL and another 2012 PLJ Lahore 293
- IFTIKHAR AHMAD CHISHTI vs DISTRICT JUDGE, CHAKWAL another 2012 PLJ Lahore 293, 2012 MLD 670