Sh. WALI MUHAMMAD vs SHAHNAZ NASEEM AND Other
This matter concerns a petition for leave to appeal against the dismissal of a writ petition by the Lahore High Court, which had upheld concurrent findings by the Guardian Judge and the appellate court granting custody of a minor child to his mother, the respondent. The petitioner, the paternal grandfather, sought custody based on his superior financial means and a prior written agreement with the respondent. The core legal question was whether the High Court erred in its limited constitutional jurisdiction by refusing to interfere with concurrent findings of fact regarding the minor's welfare and the respondent's fitness. The Supreme Court held that the petitioner failed to demonstrate any error of law in the High Court's order. The Court affirmed that financial means are only one factor in determining the welfare of a minor and that concurrent findings of fact by lower courts are generally immune from interference in writ jurisdiction. Furthermore, the Court rejected the argument that the minor's prolonged stay with the grandfather during litigation created a new right to custody, emphasizing that the welfare of the minor remains the paramount consideration.
- Are concurrent findings of fact by lower courts regarding the welfare of a minor subject to interference in writ jurisdiction?
- Does a prior written agreement between parents regarding child custody override the court's determination of the minor's welfare?
- Can a party rely on the duration of a stay order obtained during litigation to argue for the continued custody of a minor?
- Is the financial status of a claimant the sole determining factor in deciding the custody of a minor?
- Section 25, Guardians and Wards Act 1890
ORDER
1. DORAB PATEL, ACTG C. J.--The petitioner is the father-in-law of the first respondent, to whom we will refer as the respondent. The respondent married the petitioner's son on 29-9-1969, and had two children by him. The first was a son by the name of lrfan Ali and the second was a daughter. The respondent's husband died in an accident and at the time of his death, she was living with her son with his father in Khanewal, Multan District. After her husbands death, the respondent spent the Iddat period in the petitioner's house and a posthumous daughter was born there on 29-9-1971.
2. She left the petitioner's house on 11-10-1971 and went to live with her brothers. Before leaving, she entered into a written agreement with the petitioner that the petitioner would have custody of her son Irfan Ali, whilst she would have custody of her daughter. However, according to Mr. Mumtaz Hussain, the next month, she filed an application in the District Court under section 25 of the Guardians and Wards Act for the custody of her son lrfan Ali. The application was resisted by the petitioner, but it was allowed by the Guardian Judge, by his judgment dated 25-9-1973. The petitioner challenged this judgment in an appeal in the District Court which was dismissed, therefore, the petitioner filed a writ petition in the Lahore High Court against the aforesaid judgments. But, as this writ petition was dismissed in limine, he has filed this petition f or leave.
3. Mr. Mumtaz Hussain submitted that the welfare of the minor required that he should be kept by the petitioner, his paternal grandfather: But, in support of this plea, he only relied on the fact that the petitioner was comparatively well off. Now, the means of the petitioner and the respondent were only one of the several circumstances relevant to the question of the wel--fare of that minor. Irfan Ali and Mr. Mumtaz Hussain candidly admitted that there were no allegations whatsoever against the respondent's character. His only grievance was that the petitioner. Did nod have the means to educate him in a good school. However, in allowing the respondent's application for the custody of her son, the learned Guardian Judge observed:- "It is not alleged that the petitioner leads an immoral life or was not possessed of means of livelihood and was incompetent to look after the welfare of the minor."
4. We would pause to observe here that the finding that the respondent had means to look after her son was a finding on a question of fact which could hardly have been challenged in a writ petition in the High Court.
5. Reverting, however, to the order of the Guardian Judge, he has pointed out that the respondent's husband owned a shop and he was of the view that the petitioner was trying to obtain the custody of the minor Irfan Ali in order to get possession of this shop. This too is a finding on a question of fact based on evidence which is not before us. And, this finding is prima facie fatal to learned counsel's contention that the custody of the minor should be given to the petitioner. But as the appellate Court agreed with this finding, we do not see how the High Court could have interfered with this concurrent finding in its limited constitutional jurisdiction. Therefore, we observed that no case had been made out for the grant of special leave.
6. Learned , counsel then stated that although the petitioner had been unsuccessful in all the three Courts, he had obtained a stay of the Guardian Judge's order from the appellate Court. Similarly, after the dismissal of his appeal, he had obtained a stay froth the High Court pending the admission of his - writ petition. Then after his writ petition had been dismissed in limine, he had filed a petition for leave in this Court and obtained the stay which was not vacated. We expressed our regret that the orders of three Courts had not been implemented for four long years. But; according to learned counsel, this was a circumstance which supported the petitioner's claim, because the minor had been with the petitioner for these four long years, therefore, it would not be in his welfare to allow the respondent to have custody of her own child, despite the decree in her favour which had admitted--ly become final.
7. We are not impressed by this submission and in any case, the petition for leave has been filed not against the judgment dismissing the appeal, but against an order dismissing a writ petition. And the submission of learned counsel does not make out any error much less any error of law in the High Court's order.
8. Learned counsel then submitted that the minor was now more than seven years old, therefore, on this ground the respondent was not entitled to his , custody. The argument is misconceived, because the petition has been filed against the dismissal of a writ petition, therefore, the only question before the High Court was whether the orders of the Guardian Judge and the Additional District Judge were without lawful authority. The fact that the minor is now seven years' old has no relevance whatever to the propriety and validity of those orders, therefore, leave ~ cannot possibly be granted to examine this plea.
9. The petition is without merit and is dismissed.