Muhammad Rashid Versus Bibi Fatima
Muhammad Najam-ud-Din Mengal, J .--- The instant Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution"), which carries the following prayer:
"It is therefore respectfully prayed that instant petition may kindly be accepted and the impugned Judgement and Decree dated 15-04-2024 passed by the learned Additional District Judge-II, Quetta and Judgment dated 28-10-2023 passed by Family Judge-II, Quetta may kindly be set aside and custody of the Minor Muhammad Abdullah may kindly be handed over the petitioner being father of the minor, in the interest of justice."
2. Brief facts arising from the instant petition are that in the month of December 2017 the petitioner got married with respondent No.1 and out of wedlock one child namely Muhammad Abdullah was born. However, on 5th February 2021 the respondent No.1 left the house of petitioner without intimation or permission of the petitioner and left the said Muhammad Abdullah in the house of petitioner. Subsequently, the petitioner tried his best to start life with the respondent No.1 as spouses, but the respondent has failed to do so. It is further averred in the petition that the petitioner filed a suit in the learned Family Court-I, Quetta ("trial Court") for custody of minor.
3. The suit was contested by the other side by means of filing written statement. After framing of issues and recording evidence, the suit of petitioner/plaintiff was dismissed and the custody of minor was handed over to the respondent/defendant, vide judgment and decree dated 28th October 2023.
4. Being aggrieved the petitioner/appellant challenged the judgment and decree of the learned trial Court before the Court of learned Additional District Judge-II, Quetta ("appellate Court") by filing appeal, which was dismissed by maintaining the consolidated judgment and decree of the learned trial Court, vide impugned judgment dated 15th April 2024. Whereafter the petitioner has filed the instant Constitutional Petition
5. We have heard learned counsel for the parties and scrutinized the record minutely. Prime consideration for deciding the instant petition for custody of minor is the welfare of minor and nothing else. Admittedly, the minor is living with the respondent No.1/real mother since his birth and thus has developed great love and affection towards her and if at this stage, his custody is disturbed, it would adversely affect his upbringing. The respondent No.1 is the real mother of the minor and there is no substitute of a real mother on the earth. Lap of mother is considered as cradle of God, therefore, in the presence of real mother it would be very harsh for the minors to be left at the mercy of anyone else. Besides, she has not yet contracted second marriage.
6. Admittedly, mother of a child always has natural love and affection for her children and also is the best guardian. This is the reason that Islamic Law recognized the preferential right of mother to the custody of her minor children. The Hon'ble Supreme Court in the case titled as "Shabana Naz v. Muhammad Saleem, (2014 SCMR 343), while taking this issue very elaborately outlined the factors disqualifying mother and father from the custody of minor in the following words:
"23. Thus it is apparent from reading of the two paras of the Muhammadan Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to father. It has been constructed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody."
7. The perusal of record further reflects that petitioner being a government servant is often out of home and there is no female in the house petitioner except his sister to take care of the minor, whereas she is also struggling for meeting her children in the trial Court, as such, it would not be possible for her to properly take care of the minor. Although the mother has a right of Hizanat of a minor child till the age of seven years, but as the Guardian Court enjoys loco parenti jurisdiction while deciding the custody of minor(s), therefore, we find no legal infirmity in the impugned judgments passed by the Courts below. Reliance in this regard is placed on the titled as "Gul Sadam Khan v. Mst. Haleema and others, (PLD 2025 SC 47) whereby the Hon'ble Supreme Court of Pakistan keeping in view the welfare of the minor has awarded the custody of minor to the mother with the following observations:
"4. Additionally, poverty has also not been considered a valid ground for disentitling the mother from custody of the minor(s). In terms of section 7 of the Guardians and Wards Act, 1890, the paramount consideration for the court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/ children, but indeed the court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to the custody of minor and some of the factors could, where the father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child/children, does not have a capacity or means to maintain and provide for the healthy bringing up of his child/children or where the father deliberately omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor. 7 Although Mohammadan Law delineates that the mother disentitles herself from the custody of minor(s) if she re-marries, however, this is not an absolute rule but one that may be departed from if there are exceptional circumstances to justify such departure and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody. 8
8. Even otherwise, in the light of evidence available on record, it is proved that the respondent No.1 (real mother) is looking after the minor in an appropriate manner, while the child is also studying in a good school. Nothing has been brought on record, which may indicate that the minor child is not being brought up and looked after in bad manner, mere relationship of minor with petitioner is not a sufficient ground to handover his custody to him and it would not be in the interest of minor to put him in an alien environment, where there is no to properly take care of him.
9. There is no cavil with the proposition that in exercise of its constitutional jurisdiction this Court has only to see whether a Court has acted without jurisdiction or violated the statute or law laid down by the superior Courts. This Court, in such like cases, is not called upon to reappraise the evidence and the writ petitions are not to be decided in the manner appeals are to be heard and decided.
10. In view of well-reasoned judgments and decrees of both the Courts below, which are fully supported by the evidence available on record, we do not see any reason to interfere with the concurrent findings arrived at by both the Courts below.
For the foregoing reasons, the instant Constitutional Petition is dismissed. However, the respondent No.1 is directed to strictly follow the directions of meeting of petitioner with the minor, as per schedule settled by the learned trial Court in the impugned judgment dated 28th October 2023, in letter and spirit.
UN/79/Bal. Petition dismissed.