MUHAMMAD IQBAL vs Mst. IRSHAD BEGUM AND 2 crHEas
This petition is directed against the order of the Lahore High Court upholding the judgments of the lower courts which granted the custody of a minor child, Memoona Iqbal, to her mother, Mst. Irshad Begum. The core legal questions involved the territorial jurisdiction of the Guardian Judge under Section 9 of the Guardians and Wards Act and the determination of the welfare of the minor. The Supreme Court held that the ordinary place of residence of the child was correctly determined by the courts below and that the welfare of the minor would be best served in the custody of her mother, especially since her other children were already living with her. The petition was accordingly dismissed, affirming that concurrent findings of fact regarding residence and welfare based on proper appreciation of evidence do not warrant interference.
- Whether the Guardian Judge has territorial jurisdiction to adjudicate upon the custody of a minor based on the ordinary place of residence?
- Is the mother entitled to the custody of her minor child when her welfare is best served with her?
- Whether concurrent findings of fact by the lower courts regarding the residence and welfare of a minor can be interfered with in constitutional jurisdiction?
- Section 9, Guardians and Wards Act 1890
ORDER
' MIAN BURHANUDDIN KHAN, J.-This petition is directed against the order of a learned single Judge of the Lahore High Court, Lahore passed in Writ Petition No, 1103 of 1984 vide impugned judgment, dated 20th March, 1984.
2. The facts for the disposal of this petition are that Mst. Irshad Begum was married to Muhammad Iqbal on 24-3-1976. Out of this wedlock three children were born eldest being Memoona Iqbal. The relations between the parties became strained which ultimately resulted in divorce on 14-10-1981.
At that time two minor children were living with Mst. Irshad Begum while Memoona Iqbal, the eldest child, was residing with her paternal-aunt at Alipur Chattha, District Gujranwala. Mst. Irshad Begum sought custody of Memoona Iqbal on the ground that she being mother, was entitled to the custody of her minor child Memoona Iqbal. The petition was contested by the petitioner Muhammad Iqbal stating that the child was living with her paternal-aunt, was being looked after properly and was also admitted to school there. The jurisdiction of the Court was also challenged on the ground that the ordinary residence of the minor was at Gujranwala and, therefore, the Guardian Judge, Sargodha had no territorial jurisdiction to go into the question of the custody of the child in view of section 9 of the Guardians and Wards Act. Pleadings of the parties gave rise to the following issues :
(1) Whether the application has not been moved by the petitioner nor it has been signed, if so what is its effect ? 0. P. D.
(2) Whether this Court lacks territorial jurisdiction to adjudicate this petition ? 0. P. D.
(3) Whether the petitioner is entitled to recover the custody of minor ? 0. P. D.
' All the aforementioned issues were found in favour of Mst. Irshad Begum respondent by the learned Guardian Judge vide. His order, dated 8-12-1983.
3. Muhammad Iqbal petitioner then filed an appeal before the learned District Judge, Sargodha who dismissed the same vide judgment, dated 4-3-1984 and thereafter the petitioner invoked the writ jurisdiction of the High Court praying that orders of the two Courts below be declared as without lawful authority and of no legal consequence. The learned High Court dismissed the writ petition vide the impugned judgment.
4. We have heard the learned counsel for the petitioner. But we find that all the Courts below have come to the finding that the ordinary place, of residence of the child was Bhalwal and in coming to this finding they have neither ignored any evidence nor have taken any extraneous matter into consideration. As regards the welfare of the child, all the Courts have come to the conclusion that interest of the minor may be best served if she remained in custody of her mother Mst. Irshad Begum. We find no reason to differ on this finding of the Courts below. Learned counsel for the petitioner contended that the mother Mst. Irshad Begum being a person of no means would not be able to look after the child Memoona Iqbal. This argument has no force as the other two children are already living with their mother and no grievance was made regarding their welfare. It is in the interest of all the parties that the children should live together with their mother Mst. Irshad Begum.
We find no merit in this petition which is, consequently, dismissed.