Mrs. FARHAT YASMINE vs Malik ZULFIQAR And Other
This is a petition for leave to appeal filed against the judgment of the Lahore High Court, which set aside the concurrent judgments of the Guardian Judge and the Additional District Judge, Rawalpindi, and granted the custody of the minor daughter to the respondent-father. The petitioner-mother contended before the Supreme Court that the High Court was not justified in interfering with concurrent factual findings regarding the welfare of the minor and that, under Muslim Law, she was entitled to custody of the female child until her marriage in the absence of disqualifications. The Supreme Court considered whether the learned Judge in Chambers was justified in exercising constitutional jurisdiction to set aside the concurrent findings of two competent courts. Consequently, the Court granted leave to appeal and stayed the execution proceedings before the trial court pursuant to the High Court's judgment.
- Whether the High Court is justified in interfering with concurrent findings of competent courts regarding the custody of a minor in its constitutional jurisdiction?
- Does the mother retain the right to custody of a female minor until marriage under Muslim Law in the absence of disqualifications?
ORDER
AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 12-3-1995 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.828 of 1994, filed by respondent No.1-husband against the concurrent judgments of the learned Guardian Judge, Rawalpindi, dated 21-9-1992 and of the learned Additional District Judge, Rawalpindi, dated 2-2- 1994 granting custody of the minor daughter, then aged about eight years, allowing the same by setting aside the aforesaid concurrent judgments and granting the custody of the minor to respondent No.1 i.e. The father. The petitioner has, therefore, filed the present petition for leave to appeal.
2. In support of the above petition, Mr. Muhammad Ilyas Siddiqui, learned A.S.C. For the petitioner, has contended that the learned Judge in Chambers was not justified in interfering with the concurrent finding of the to competent Courts to the effect that minor's welfare would be in granting her custody to the mother. His further submission was that since the child was a female, the petitioner, in the absence of any disqualification under Muslim Law, was entitled to the custody till the marriage.
3. We are inclined to grant leave to consider the question, whether in the facts and circumstances of the present case the learned Judge in Chambers was justified in pressing into service his Constitutional jurisdiction for setting aside the concurrent judgments of the to competent Courts.
Leave is, accordingly, granted. The execution proceedings before the trial Court pursuant to the High Court's judgment are stayed.