NAJMA YASMIN Versus JAVED AKHTAR

MALIK HAMID SAEED, J.‑‑ ‑--The question of the custody of the minor child Arsalan Javed was raised before the learned Family Court, Peshawar by S. Javed Akhtar on the ground that he is in a better position to properly look after the welfare of his minor son than his mother Mst. Najma Yasmin. The evidence recorded by the learned Family Court disclosed that Mst. Najma Yasmin (petitioner) and Javed Akhtar (respondent No.1) had entered into marriage tie in November, 1987 and out of the said wedlock a male child (Arsalan Javed) was born on 13‑9‑1988. Soon thereafter, the relations between the spouses became strained and they used to live separately.

2. After about 12 years, during which period the child remained in the custody of her mother without payment of any maintenance from the father and was receiving education in the 6th Class in an English Medium School, called "Peshawar Public School and College", the father through an application sought custody of the minor before the learned Family Court, which application was accepted and the appeal filed by the mother/petitioner before the learned District Judge, Peshawar also did not prove fruitful. Hence this writ petition.

3. Perusal of the impugned judgments reveal that the learned Courts below while awarding custody of the child to father kept in view his welfare and the provisions of Islamic Law with regard to entitlement of the father to seek custody of the minor child after attaining the age of 7 years. The learned Court below, therefore, also did not deem it proper to consider the request of the mother to see the capability of the child to make an intelligent preference by recording his statement in the Court.

4. We, however, do not find ourselves in agreement with the conclusion arrived at by the learned Courts below, which is not only based on misreading/non‑reading of evidence but is also in deviation of the provisions of the Guardians and Wards Act. It is a fact that for about 12 years, the father/ respondent No.1, never asked for the custody of the child and even did not pay any expenses for his brought up. All the expenses were borne out by the mother/petitioner. The mother/petitioner in her statement has stated that:‑‑

It is also a fact that the petitioner/mother is receiving her salary in BPS -17 as a permanent employee/teacher in the Peshawar Public School wherein the child is also studying. The two brothers and uncle of the petitioner/mother are doctors by profession. The petitioner/mother has not contracted second marriage. The observations of the learned Courts below that the petitioner/mother is dependent upon her parents are not correct and are against the record. She is an educated woman, receiving about Rs.9,000 per month from teaching profession. On the other hand, the respondent/father is an Engineer in PTV, having a sister in his house and intends to admit the child in Burn Hall at Abbottabad. It is also on file that the father/respondent No.1 attends his duties from 9‑00 a.m. to 5‑00 p.m., meaning thereby that he remains out of the house for considerable time and the sister of father in the circumstances could not prove such love and affection to the child, which the mother could. So far the admission of the child in the Boarding House at Abbottabad is concerned, the present educational institution at Peshawar is more suitable to the child, who is not only having the company of her mother both in the school as well as at home, but the father/respondent could also meet the child at Peshawar, which would not be possible even for the father to meet his child regularly at Abbottabad due to his service exigencies at Peshawar.

5. While hearing this petition, we had ordered for the production of the child in the Court, which was accordingly produced today. When we verbally asked about his preference, he, who by a cursory look was aged about 14 years and capable to understand the demand of the situation, in unequivocal terms with a firmed decision refused to go with his father and preferred to remain in the custody of, her mother. From the above, it could be safely presumed that the welfare of the minor in this case would lie in the custody of the mother instead of father, as held by the learned Courts below. Right of father to claim the custody of minor son is not an absolute right, as it is the welfare of a minor which should be of paramount consideration while determining the question of custody of a minor notwithstanding the right of the father to get the custody after years of age of the male minor child. The august Supreme Court of Pakistan has so held in the case of Mst. Firdous Iqbal v. Shifaat Ali 2000 SCMR 838, the relevant portion of which is hereby reproduced as under:‑‑

"The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so‑called right of one parent or another. It is true that a Muslim, father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case."

It has not been shown by the father/respondent No. 1 that the petitioner/mother has ever remained negligent in the care of her minor son. On the other hand, it is proved by the petitioner/mother and also admitted by the father that he never claimed custody of the child, who remained with the mother for about 12 years, during which period she not only brought him up properly, from every angle, i.e. medical treatment, education and other expenses, for which the father did not pay anything to her and then suddenly after 12 years he came forward for the custody of his son on the ground that the welfare of the child lies in his company. Such a conduct of the father/respondent. No.1 is sufficient to disentitle him to the custody of the minor child.

6. For the aforesaid reasons, this writ petition is accepted, the impugned judgments of the learned Courts below are hereby set aside anti it is ordered that the minor child, petitioner No.2, shall remain in custody of the mother. The father is, however, entitled to meet the minor child once in a week.

No order as to costs.

S.A.K.1695/P Petition accepted.