Mst. BIBI YASMIN alias YASMIN vs ADDITIONAL DISTRICT JUDGE, ATTOCK and anothers
These petitions for leave to appeal arise from two separate custody disputes involving minors under the Guardian and Wards Act 1890. In both cases, the Lahore High Court, exercising writ jurisdiction, set aside orders of lower courts regarding the custody of minors. In the first case, the High Court granted custody to the father, reasoning that the mother’s remarriage to a stranger disqualified her. In the second case, the High Court substituted its own findings for those of the lower courts, declaring the father suitable for custody despite contrary findings by the Guardian Judge and the District Judge. The petitioners challenged these High Court judgments, arguing that the High Court improperly interfered with concurrent findings of fact and relied on a previous judgment currently under appeal before the Supreme Court. The Supreme Court granted leave to appeal in both petitions to examine the scope of the High Court's writ jurisdiction in custody matters and the legal implications of a mother's remarriage on custody rights. Interim stay orders were maintained pending final adjudication.
- Does the remarriage of a mother to a person not related to the minors automatically disqualify her from retaining their custody?
- Can the High Court in writ jurisdiction substitute its own findings of fact for those of the lower courts in custody matters?
- To what extent can a High Court interfere with concurrent findings of fact regarding the welfare of minors under the Guardian and Wards Act 1890?
- Section 25, Guardian and Wards Act 1890
ORDER
' ZIA MAHMOOD MIRZA, J.---These two petitions though seek leave to appeal against two separate judgments of a learned Single Judge of Lahore High Court, raise some common questions of law and, therefore, these are being disposed of together by this order.
2. In Civil Petition No,243 of 1995, Abdul Khaliq respondent brought an application under section 25 of Guardian and Wards Act for custody of his son Khalid Ikram and daughter Mst. Saima. The application was resisted by the petitioner, the mother of the minors. Learned Guardian Judge after recording the evidence led by both the parties allowed the application by order dated 6-11-1994.
Appeal filed by the petitioner was accepted by the Additional District Judge vide order dated 2-1- 1995 which the respondent challenged in a writ petition in the Lahore High Court, Rawalpindi Bench.
The writ petition has been accepted by a learned Judge in the High Court vide judgment dated 18- 4-1995 holding that the mother of the minors having re-married a person not related to them was no longer entitled to retain their custody and that there was nothing on the record to show that the father was disqualified to have the custody of the minors. Order of the appellate Court was thus set aside and the custody of the minors given to their father, the respondent. Feeling aggrieved, petitioner seeks leave to appeal against the order of the learned Single Judge.
3. In Civil Petition No,267 of 1995 also, father sought the custody of his minor sons by making an application under section 25 of the Guardian and Wards Act which was resisted by present petitioner, the mother of the minors. Learned Guardian Judge after recording the evidence adduced by the parties dismissed the respondent's application. His appeal, too, was dismissed by the learned District Judge whereafter he invoked the constitutional jurisdiction of the High Court.
His writ petition has been allowed by a learned Single Judge holding that "Since the father is well suited to have the custody of the minors and does not suffer from any disqualification to have that status nor the learned lower Courts had found him to be suffering from any disability, economic or otherwise, as 'such the impugned orders are declared to have been passed without lawful authority as being in violation of law on the subject." Consequently, the minors have been given in the custody of their father vide judgment dated 20-4-1995, leave to appeal against which is sought by the petitioner.
4. Learned counsel appearing in support of these petitions has submitted that in both the impugned judgments, the learned Single Judge has relied upon his previous judgment dated 6-12- 1994 rendered in Writ Petition No,1228 of 1993 against which judgment, leave to appeal has since been granted by this Couct in Civil Petition No,13 of 1995 on 1-2-1995.
' As regards Civil Petition No,267 of 1995, learned counsel has further contended that the two Courts of competent jurisdiction having found the question of custody of minors against the respondent, it was not available to the learned Judge in the High Court to substitute his own finding for that of the Courts below in exercise of writ jurisdiction.
5. To consider the afore-noted contentions raised by the learned counsel for the petitioners, leave to appeal is granted in both the petitions.
' Interim stay orders already issued in both the cases shall continue in force pending the final disposal of the appeals which may be fixed for hearing at an early date as the question involved relates to the custody of the minors.