KARACHI DEVELOPMENT AUTHORITY Versus THE IVTH ADDITIONAL DISTRICT JUDGE (SOUTH)

In this Constitutional petition the judgment of the 1st Family Court and Senior Civil Judge (South), Karachi, dated 3‑12‑1980, and the judgment dated 29‑10‑1985, passed in appeal against the said judgment by the IVth Additional Sessions Judge, (South), Karachi, are challenged.

2. The admitted facts leading to these proceedings are, that the parties were legally married, but separated on 9‑9‑1974 after divorce was granted by the Court of law to the petitioner. Out of this wedlock one son minor Rafique Hussain was born who is residing with the petitioner. Admittedly, after divorce, both the parties have remarried and have children from their second marriage. The respondent filed Guardians and Wards Application No.50 of 1976 before the Family Court for the custody of his minor son, which was granted by the Family Court vide judgment dated 3‑12‑1980. The appeal filed by the petitioner against the said judgment of the Family Court was dismissed by the learned Appellate Court vide judgment dated 29‑10‑1985.

3. The petitioner resisted the application of the respondent on the ground, that he had failed to maintain the minor child and that it was not in the welfare of the minor child to reside with his father specially when the respondent had disputed the legitimacy of the minor child. The learned trial Court disbelieved the allegations that the respondent bad disputed the legitimacy of the child accusing petitioner to be on illicit connection with her witness Munna. The learned Appellate Court also concurred with this finding. With regard to the allegations of non‑maintenance, the trial Court as well as Appellate Court pointed out, that it was admitted by the petitioner, that respondent used to send maintenance through money‑order to the child. Under the circumstance, the only question before the Court below was as to where the welfare of the minor child did lie, whether in his stay with mother or with his father.

4. There is nothing on record to show, as to when the minor child was born, but it appears from the. judgment of the learned Appellate Court, that when the petitioner was examined by the Court on 24‑7‑1980, the age of minor was stated to be seven years. The minor would now be aged about 15 years. According to the Sunni Law, under which the parties are governed the custody of male child of seven years and above is to remain with the father, unless it is proved, that he is not a fit person to retain the custody of the minor child. Admittedly, the petitioner is married with a stranger and had a son and daughter through him. It was stated at the bar by Mrs. Saleema Nasiruddin, learned counsel for the petitioner that the son of the petitioner from her second marriage had died. Be that as it may, that fact alone would not entitle her to retain the custody of the minor. It also appears from the judgment of the Court below, that the petitioner has no source of income of her own, but according to her, her second husband bears the expenses of educating the minor. It also appears to have been admitted by the petitioner that she had no proof to show, that the minor child was getting any education. It also appears from the judgment that the respondent is employed in Awami Auto and was earning more than Rs.900 p.m. and that he has only one daughter from his second marriage. Considering all these facts both the Courts below came to the concurrent finding, that it was in the welfare of the minor, that his custody should be given to the respondent. This is purely a question of fact.

5. Both the Courts below have come to this concurrent finding for cogent reasons. The learned counsel for the petitioner was not able to show, as to how this finding can be considered to be illegal, perverse, or based on misreading or non‑reading of the evidence. The learned counsel for the petitioner has relied upon the case of Sultan Mirza v. Shahnaz Akhtar (P L D 1975 Lah, 194), wherein the custody of minor boy who had attained the age above seven years was handed to the mother, but the facts of reported case are different from the instant case. In the reported case, the second wife of the father had objected to the undertaking given by the father of the minor, to get the boy admitted in school, and further the Court came to the opinion, that past conduct of the appellant viz. father, exhibited his lack of concern for the boy with regard tin his, illness and maintenance and that the minor was well maintained by the mother and her second husband, and was getting good schooling.

6. I have already pointed, that in the instant case the Courts below have arrived at concurrent finding on these questions of fact and for cogent reasons have concluded that it was in welfare of minor that his custody should have been given to the respondent. Under the circumstances, I find no reasonable grounds to interfere with the impugned orders in exercise of writ jurisdiction of this Court under Article 199 of the Constitution. The petition, therefore, is dismissed with no orders as to costs.

H.B.T./S‑200/K Petition dismissed