Mst. FARHANA ZAR vs Sq. Leader NAJEEB ASHRAF and others
This petition is directed against the judgment of the Lahore High Court whereby it exercised constitutional jurisdiction under Article 199 of the Constitution of Pakistan 1973, set aside the concurrent findings of the Family Judge and Additional District Judge, and awarded the custody of the minor children to respondent No.1. The core legal question involves the propriety of the High Court interfering with concurrent factual findings of courts of exclusive jurisdiction in matters of minor custody. The Supreme Court considered the contentions that the High Court improperly substituted its own opinion and relied on a precedent where leave to appeal had already been granted by the Supreme Court. The court held that the contentions required consideration and granted leave to appeal, ordering the interim custody arrangement to continue until the disposal of the appeal. The key principle laid down is that the Supreme Court will examine whether constitutional jurisdiction under Article 199 can be invoked to set aside reasoned concurrent findings of lower courts on questions of fact in guardianship matters.
- Whether the High Court can interfere with concurrent findings of fact rendered by courts of exclusive jurisdiction in child custody matters under Article 199 of the Constitution of Pakistan 1973?
- Can a writ petition be maintained against the dismissal of an application under Section 25 of the Guardians and Wards Act 1890 by lower family courts?
- Article 199, Constitution of Pakistan 1973
- Section 25, Guardians and Wards Act 1890
ORDER
' ABDUL HAFEEZ MEMON, J.---This petition is directed against the judgment dated 26-9-1995 passed by the Lahore High Court, Rawalpindi Bench, whereby in exercise of its Constitutional jurisdiction under Article 199 of the Constitution set aside the concurrent findings of the learned Family Judge and the learned Additional District Judge and awarded custody of the minors to respondent No,1.
2. The relevant facts are that the petitioner and respondent No,1 were married in the year 1982, and three children Mobeen Ashraf, Mohsan Ashraf and Sonia were born to them. The parents were subsequently divorced and the children have been since living with the petitioner mother, who is residing with her father Dr. Javed Rasul Zar, who was Medical Superintendent of Holy Family Hospital, Rawalpindi.
3. Respondent No,1 filed an application under section 25 of the Guardians and Wards Act before the Family Court for custody of the minor children. The petitioner contested the application. The learned Senior Civil Judge/Family Judge, Rawalpindi, after framing the necessary issues and recording the evidence, oral as well as documentary, dismissed the application by an exhaustive order dated 3-2-1993, and appeal filed against this order was dismissed by the learned Additional District Judge, Rawalpindi.
Respondent No,1 thereafter filed a writ petition in the High Court. The learned Judge in the High Court allowed the petition, set aside the concurrent findings and the orders passed by the two Courts below, and substituting his own findings, awarded custody of the children to the respondent No,1. Hence, this petition.
4. Learned counsel for the petitioner pointed out that the learned Judge in the Lahore High Court in awarding the custody of the minors to respondent No,1 had relied upon the case reported as Imtiaz Begum v. Tariq Mahmood and others (1995 CLC 800), but in this very cited case leave has already been granted by this Court.
5. Learned counsel next contended that the two Courts below of exclusive jurisdiction having given concurrent findings on the question of fact by recording evidence of the parties and correctly appreciating the law regulating custody of the minors, it was not open to the learned High Court to interfere with the concurrent findings, in exercise of its Constitutional jurisdiction under Article 199 of the Constitution, and substituting its own opinion as if it were hearing appeal against the orders passed by the Courts below.
6. The contentions require consideration. Leave is accordingly granted. Interim order dated 15-11- 1995 to continue till disposal of the appeal.