MUHAMMAD TAHIR vs Mst. RAEESA FATIMAH and others
This matter arises from a petition for leave to appeal directed against an order of the Lahore High Court, which dismissed the petitioner's writ petition and upheld the appellate judgment granting the custody of minor children to the respondent ex-wife. The core legal question concerned the entitlement of the father to the custody of minor children belonging to the Shia sect, alongside allegations regarding the mother's character and financial capability. The Supreme Court held that the concurrent findings of the lower appellate court and the High Court regarding the welfare of the minors, the mother's ability to maintain and educate them, and the unsubstantiated nature of allegations against her warranted no interference. The Court affirmed that welfare of the minor is the paramount consideration in custody matters, and dismissed the petition as lacking any substantial question of law of public importance.
- Whether the custody of minor children can be denied to the mother on unproven allegations of bad character?
- Does the Shia personal law strictly disallow the mother's custody of school-going minor children regardless of their welfare?
- Whether the Supreme Court will interfere with concurrent findings of lower courts on questions of fact in child custody matters?
' FAQIR MUHAMMAD KHOKHAR, J.---The petitioner seeks the grant of leave to appeal from order, dated 16-10-2001 passed by the Lahore High Court in Writ Petition No,13800 of 1999.
2. Briefly stated, the facts of the case are that the respondent No,1 an ex-wife of the petitioner filed, against the petitioner, a suit for custody of minor but school-going children namely, Mst. Khubra Fatima, Waqar Ali and Muddasar Ali aged 12, 11 and 10 years respectively. The Family Court/Guardian Judge, Lahore by judgment and decree, dated 7-10-1998 dismissed the suit of respondent No,
1. However, her appeal was accepted by the Additional. District Judge, Lahore by judgment and decree, dated 18-12-1999. The petitioner filed a Writ Petition No,13800 of 1999 there against. The same was dismissed, by the impugned judgment, dated 16-10-2001, by the Lahore High Court. Hence this petition for leave to appeal.
3. The learned counsel for the petitioner argued that since the parties belonged to the 'Shia sect', therefore, keeping in view the age of the minor children the petitioner was entitled to their custody.
It was further submitted that the respondent No,1 had developed illicit relations with one Muhammad Arshad. It would not be safe and in the interest of the minors to entrust their custody to the respondent No,1. The learned counsel lastly contended that respondent No,1 was not in a position to maintain the children adequately with proper education as she was illiterate and without any known sources of income.
4. On the other hand, the learned counsel for the respondent No,1 submitted that respondent No,1 was under-Matriculate and was teaching in a school. The other allegations against the respondent No,1 were baseless. The minor children remained in the custody of the respondent No,1 throughout.
The petitioner succeeded in obtaining the order, dated 6-12-2001 from this Court for the interim custody of minor children by mis-statement.
5. We have heard the learned counsel for the parties at length. The Lahore High Court had affirmed the judgment of the Additional District Judge on the ground that it was based on proper facts and law. The respondent No,1 was found to be educated who could provide better education to the minors if they were given in her custody. The learned Judge in Chambers took the view that even if income of respondent No,1 was lesser than the petitioner, the same was enough for the proper education and maintenance of the minors. The allegations against respondent No,1 were not substantiated. The respondent No,1 does not seem to have contracted a re-marriage so far after getting the divorce from the petitioner. The impugned judgment of the Lahore High Court does not call for any interference. The case does ,not involve any substantial question of law of public importance.
6. This petition is devoid of any merit and the same is dismissed accordingly, with no order as to costs.
Cited by 2 cases
- Mst. Safia Bibi etc vs Addl. District Judge etc 2021 LHC 3454, 2022 CLC 762
- MUMTAZ ALI vs Mst. SALMA and others 2006 CLC 1606