AMINA BI Versus MUHAMMAD ABBAS BUTT
This petition for leave to appeal arose from a custody dispute between the maternal-grandmother (petitioner) and the biological father (respondent) over three minor children following the mother's death during childbirth. The respondent-father filed an application for custody under Section 25 of the Guardians and Wards Act 1890, which the Guardian Judge initially dismissed. On appeal, the Additional District Judge reversed that decision and granted custody to the father on the ground of the minors' welfare. The petitioner challenged this before the Lahore High Court, which dismissed her constitutional writ petition in limine. The primary legal questions before the Supreme Court were whether the welfare of the minors was best served by granting custody to the biological father over the maternal-grandmother and whether the High Court properly declined to interfere with the appellate court's finding of fact in its writ jurisdiction. The Supreme Court dismissed the petition, holding that the finding regarding the welfare of the minors was a factual determination properly made by the appellate court on the record, which could not be interfered with in constitutional writ jurisdiction.
- Can a High Court interfere with an appellate court's finding of fact concerning the welfare of minors in the exercise of its writ jurisdiction?
- Whether the biological father can be granted custody of minor children under Section 25 of the Guardians and Wards Act 1890 in preference to their maternal-grandmother where it is found to serve the welfare of the minors?
- Does a finding on the welfare of minors in custody proceedings constitute a finding of fact?
- Section 25, Guardians and Wards Act 1890
ORDER
1. JAVID IQBAL, J.‑ ‑This petition for leave to appeal has been filed by Mst.Amina Bi petitioner and is directed against judgment of the Lahore High Court Rawalpindi Bench dated 2nd May, 1988.
2. Briefly the facts are that the petitioner is maternal‑grandmother of Mst.Shahista Abbas aged about 7 years, Mst.Taushiba Abbas aged about 4 years and Faisal Shahzad .aged about 3 years. The last mentioned child namely Faisal Shahzad was delivered by the petitioner's daughter in the hospital at Jhelum on 17 September, 1985 and her daughter, Mst. Khalida Begum, died at last child's birth. The three minors ever since have been living with the petitioner. Muhammad Abbas Butt respondent (their father) moved an application under section 25 of the Guardians and Wards Act for the custody of the children which was disallowed by the Guardian Judge 'as in his view the welfare of the minors lay in their custody being retained by their maternal‑grandmother i.e. the petitioner. However, on appeal the Additional District Judge reversed these findings and awarded the custody of the minors to their father i.e. the aforesaid respondent. This judgment was challenged by way of writ petition in the Lahore High Court Rawalpindi Bench Rawalpindi where learned Single Judge dismissed the writ petition of the petitioner in limine. Hence the present petition.
3. Maulvi Sirajul Haq learned counsel for the petitioner. argued before us that under Muhammadan Law maternal‑grandmother had a preferential right for the custody of the minors and that it was in their interest that they should continue to live with the petitioner. Consequently according to him the judgment of the Additional District Judge should have been set aside. On the other hand Kh.M.Yousuf Saraf learned counsel for the respondent‑father argued that the welfare of the minors lay in the custody of the minors having been granted to their father. We adjourned this matter on a couple of occasions in order to enable the parties to reach at some kind of compromise or an agreement but all these attempts failed. It may be noted that the respondent‑father's mother is the real sister of the petitioner. Furthermore the petitioner's daughter Mst.Khalida Begum deceased was married to the aforesaid respondent and his sister in exchange had been married to the son of the petitioner. It may further be noted that the sister of the aforesaid respondent was divorced by the son of the petitioner during the pendency of the present litigation, and thus the relations between the parties had become strained. The parties are residing separately at two different places with eight miles distance in between. The minors were living with their grandmother i.e. the petitioner when their own ,mother died Thereafter' the petitioner is stated to have moved an application before the Judge Family Court for the grant of maintenance of the minors which was allowed. Thus the father' of the minors .vas made to pay Rs.100 per month for each minor as maintenance to the petitioner. Because of the strained relations between the parties the respondent‑father or any member of his family had never triad any access to the minors, so much so that according to the respondent father they would not even recognize him when they grow older and at the same time their minds would be poisoned as against their father by the petitioner. It was submitted before us by learned counsel for the respondent‑father that he was a Havaldar working as a security guard of a bank in Karachi and was earning Rs.3,000 per month. It was also brought to our notice that he never remarried after the death of his wife and had no intention to contract a second marriage. It was further submitted that since the petitioner was dependent on her sons and husband and was even getting maintenance for bringing up the minors, the respondent‑father was certainly in a better financial position to bring them up as they could stay with him and his mother (paternal‑grandmother of the minors) as well as his divorced sister (i.e. Phuphi of the minors). And he would call his mother and/or sister at Karachi and make them all stay there; so that they could live with him and are brought up under his supervision. Thus it was submitted that it was in the welfare of the minors that their custody was handed over to their father.
4. After carefully considering the arguments advanced by both the sides and due to the failure of attempts enabling the parties to arrive at a compromise or an agreement, we are of the view that the learned Single Judge of the Lahore High Court, Rawalpindi Bench was correct in arriving at the conclusion that it was in the welfare of the minors that their custody be handed over to the respondent' father and that since the finding on the question of welfare of the minors was a finding of fact arrived at by the Additional District Judge on the basis of the material on record, this finding of fact could not be interfered with in the exercise of the writ jurisdiction.
5. In the light of the above discussion we are of the view that the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi calls for no interference, and as a result this petition is hereby dismissed.
6. M.I./A‑277/S Petition dismissed.