--Custody of minors--Male children was handed over to father, who was a civil servant and even educated person--

 PLJ 2009 Lahore 356 

Constitution of Pakistan, 1973—

 

----Art. 199--Constitutional petition--Custody of minors--Male children was handed over to father, who was a civil servant and even educated person--Application for custody to extent of the male children was accepted--Appeal was dismissed--Challenged through writ petition--Right of custody for male minors who are above 7 years--Validity--Question raised through writ petition is that change of custody from mother to father shall change the scenario, and would damage the future of minors--Held: Civil servant being an educated person will not care for future of his minor sons for whom he was much concerned all along--Right of custody for male minors who are above 7 for father is to be preferred as he is in a better position to facilitate and arrange schooling--No illegality or infirmity calling for interference in exercise of Constitutional jurisdiction of High Court--Petition was dismissed.      [P. 358] A

Mr. Muhammad Sana Ullah Khan, Advocate for Petitioner.

Date of hearing: 22.1.2009.

 PLJ 2009 Lahore 356

Present: S. Ali Hassan Rizvi, J.

KOUSAR PERVEEN alias SHAMEEM--Petitioner

versus

MUHAMMAD FAYYAZ and 2 others--Respondents

W.P. No. 1068 of 2009, decided on 22.1.2009.

 

Order

The petitioner is aggrieved of the judgment of the learned trial Court dated 14.07.2008 whereby the custody of the minors male children was handed over to Respondent No. 1 and the dismissal of the appeal on 22.11.2008, there-against.

2.  Brief facts of the present case are; that the petitioner was married with Respondent No. 1 and out of the wedlock five children were born. Respondent No. 1 filed an application seeking custody of four children, namely, Mst. Ishrat Fatime, (12), Naeem Sultan, (11), Saleem Sultan, (09), and Waseem Sultan, (07) on the ground that petitioner-respondent left his house and a suit for restitution of conjugal rights was pending. The minors were studying in Sun Rise English Medium School. Their future was at stake on account of removal of minors from his custody by the mother, therefore, it was in the welfare of the minors to grant him their custody. The petitioner filed written reply and raised a preliminary objection that the petition was filed in order to avoid the maintenance allowance; that in fact the respondent had beaten her and turned out from his house and that it was in the welfare of the minors if custody remained with her. The learned trial Court framed the following issues out of pleadings of the parties:

(i)   Whether the applicant is entitled for the custody of the minors as Welfare of minors lies with him? OPA

(ii)  Whether the application/suit is false and frivolous and same has been filed just to avoid the payment of maintenance allowance? OPR

(iii) Relief.

After recording evidence, learned Guardian Judge/trial Court decided Issue No. 1 and held that Respondent No. 1 was a civil servant and even educated person. The custody of female child Mst. Ishrat Fatime was declined while for the male minors who were above 7, was given to the respondent observing that it was in the welfare of the minors if custody was given to Respondent No. 1. Resultantly, the application of the respondent for custody to the extent of the male children Naeem Sultan, Saleem Sultan and Waseem Sultan was accepted. The petitioner filed an appeal which was dismissed, hence, this writ petition.

3.  Learned counsel for the petitioner has alleged that the minors are getting education in a school and change of custody shall jeopardize their future. In his view, change of educational institution is sufficient ground as in the circumstances the minors shall suffer with a set back, qua their education, which is supreme.

4.  Heard. Respondent No. 1 as PW1 in his main petition has alleged that male minors Naeem Sultan, Saleem Sultan and Waseem Sultan were student of Sun Rise Public School when they were taken away by the petitioner and their future was put to winds.

5.  Perusal of the record reveals that there is no rebuttal of the above version. A suit for restitution of conjugal rights is also pending. The admitted fact is that Respondent No. 1 is a civil servant and an educated one. The male minors all are above 7.  They were studying in Sun Rise Public School at the time of removal. The father deposed in his evidence as PW1 that he was worried about the future of the minors and intended to provide them better schooling and facilities. The basic consideration for the Guardian Judge remains and continues to be the welfare of the minors. The learned Guardian Judge after recording evidence was of the opinion that the welfare of the male minors lay in giving their custody to the respondent. The question raised through this petition is that change of custody from mother to father shall change the scenario, and would damage the future of minors. As far as appreciation of evidence is concerned, a different view cannot be taken that a civil servant being an educated person will not care for future of his minor sons for whom he was much concerned all along. The right of custody for male minors who are above 7 for father is to be preferred as he is in a better position to facilitate and arrange schooling. There is no illegality or infirmity calling for interference in the exercise of Constitutional jurisdiction of this Court. Dismissed.

(R.A.)      Petition dismissed.