Mst. ZAHIDA KIANI and anothers vs Capt. (Rtd.) SHAHID ALI KHAN

ORDER

' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the judgment of the learned Judge in Chambers of the High Court whereby the Constitution petition filed by them was dismissed.

2. The respondent had filed petition under section 25 of the Guardians and Wards Act seeking custody of his child who was about 11-1/2 years old at that time. Petitioner No,1 and the respondent were married on 1-8-1981 and a son was born out of this wedlock on 23-5-1982. The marriage however dissolved on 7-6-1990 and the petition for custody of the minor was filed on 7-5-1991. This petition was allowed and the order was also confirmed by the appellate Court. The petitioners then challenged the appellate judgment through a Constitution petition filed in the High Court which was dismissed by the impugned judgment.

3. Mr. Mumtaz Ali Mirza, the learned counsel for the petitioners contended that the Guardian Court did not have the jurisdiction to entertain the petition and that the petitioners were not allowed to lead evidence nor was any issue framed on this point and therefore the entire finding is illegal and without jurisdiction. The learned counsel referred to the judgment of the Guardian Judge in which no issue regarding jurisdction was specifically framed, but in para. 13 the learned Judge had adverted to this issue specifically pointing out -that the territorial jurisdiction had been challenged by the petitioners. Thereafter he has dealt with this objection at length with reference to the evidence produced in Court and came to the conclusion that the Court had jurisdiction to entertain and decide the case. Mr. Mirza contended that as no issue was specifically framed the petitioners were not able to lead any evidence on it. From the exhaustive discussion in all the three judgments, particularly the judgment of the High Court, it is clear that the petitioners had been avoiding to lead evidence. Datewise details have been given in the judgment of the High Court and a perusal of the diary of the trial Court leaves no doubt that the petitioners were avoiding to produce evidence. This being their attitude, to contend That they would have led evidence on point of jurisdiction seems to be completely preposterous. In the facts of the case, by failure to frame issue on question of jurisdiction, no prejudice has been caused to the petitioners.

4. Mr. Mirza contended that it is not in the welfare of the minor that the custody should be delivered to the respondent as he had not cared for him for many years and there is no female member in his house to look after the minor. The admitted facts are that petitioner -No,1 has re-married and has one son aged about seven months. Her husband has three children from the first wife. On the other hand the respondent has not married so far and has stated that he will not marry. As regards the female member in his house, he states that his maternal aunt resides with him. He also states that his paternal aunt also comes end resides with him and if the minor is given in his custody, he will see to it that these female members permanently reside with him. So far his maternal aunt is concerned, he states that she is permanently residing with him and he is maintaining her. Another factor pointed out by the learned counsel for the respondent is that the petitioner No,1 or her present husband had admitted the child in a school and there his parentage had been shown that of his step-father. In such cases it is the welfare of the minor which is to be considered first. No doubt according to the Muslim Personal Law the respondent is entitled. To the custody of the minor, but mere entitlement is not enough to have the custody unless it is in the welfare of the minor. In such a situation as in this case the Court has to examine the facts from both the sides and to determine what course should be adopted for the welfare of the minor. The trial Court and the appellate Court have judged the case on merits and the evidence on record and concurrently found that it is in the welfare of the minor that the respondent should be handed over custody of the child. In exercise of the Constitutional jurisdiction the learned Judge in chambers has exhaustively dealt with this aspect from the legal and also from the view point of Islamic jurisprudence. The learned Judge has also reached the same conclusion. Except the aforestated contentions no other lacuna could be alleged against that judgment. These contentions as discussed above do not make the impugned judgment without jurisdiction or illegal.

5. During the arguments impression was given that the child has aversion against his father and although under the Court's order he was allowed to go and stay with the father for some time, he was not happy over it and wanted to reside with the mother. We have seen the child who is an intelligent boy. We also talked to him in Court in complete seclusion as the parties and the persons present in the Court were asked to leave for some time. Our impression is that the child is intelligent and has good understanding about the matters which normally a child of his age should understand. He has soft feelings towards his father, but living with the mother he cannot express his real feelings because after all he had been living with his mother for a few years without having any meeting with his father. In these circumstances we find no justification to grant leave to the petitioners.

The respondent has undertaken that he would get his son admitted in the Beacon House School which is very near to his house. He has also stated that he would not object if the petitioners meet with him (son). However, to regulate this meeting it is ordered that on every Thursday evening before sunset the respondent shall hand over the child to the petitioner No,1 at her house provided it is located in Rawalpindi or Islamabad and she will return the child on Friday evening before sunset. With these observations the petition is dismissed.