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Petitioner: Lt.Col. (Retd.) IJAZ ALI KHAN VS Respondent: Mst. SHAHEEN and 2 others
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: Lt.Col. (Retd.) IJAZ ALI KHAN vs Mst. SHAHEEN and 2 others Case No.: Writ Petition No,493 of 1992 Date of Judgment:1993-05-12 Reported As: 1993 CLC 2088 Result: Petition dismissed
JUDGMENT
JUDGMENT ' Through this Constitution petition, Lt.-Col. (Retd.) Ijaz Ali Khan, the petitioner before this Court has, challenged the order dated 25-7-1991 passed by the learned Guardian Judge, Rawalpindi whereby his application under section 25 of the Guardians and Wards Act, seeking restoration of custody of his three minor children, out of whom two are daughters and one is the son, was dismissed and the order dated 1-2-1992, whereby the learned Additional District Judge, Rawalpindi dismissed his appeal filed against the order referred to above. 2. Briefly stated facts of the case giving rise to this constitutional petition are that the petitioner who is a Yousaf Zai by caste and respondent No,1 who is Khattak were married on 24-10-1976. Out of the wedlock three children were born. Sadaf Ijaz a daughter was born on 2-4-1978, Wasaf Ijaz, a daughter was born on 30-10-1979 and Fawad ljaz a son was born on 2-11-1981. Both the spouses as well as their children besides, living in Pakistan, have also lived in "Abudhabi" for quite a number of years where the petitioner had been appointed as a Counsellor in the Pakistan Embassy. They came back to Pakistan in July 1987. After they came back to Pakistan, it appears that some rift had developed amongst the spouses which was tried to be settled through good offices of Mst. Hajran who is a Swiss lady and is married to the maternal uncle of the petitioner. Consequently a document of settlement of dispute between the spouses which has been placed on the record of this writ petition at page 114 and is Exh. D1, on the record of the lower Court, is reproduced as under: 29th July 1988 "Both Ijaz and Shaheen agree in the presence of Hajran Mami that: (1) Ijaz and Shaheen want separation.
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(2) Shaheen will be paid Rs,1,500 (Rupees fifteen hundred only) per month by ljaz when Shaheen finally leaves ljaz's house and takes permanent residence at her own anywhere else. This amount of Rs,1,500 (Rupees fifteen hundred only) will be the monthly subsistence-cum-maintenance allowance of Shaheen and children. (3) Should Shaheen decide not to leave ljaz's house, she (Shaheen) could live in ljaz's house provided: (a) It is a separation between the husband and wife i,e, Ijaz and Shaheen and enforced as such in every respect. (b) Ijaz shall not pay the abovementioned subsistence-cum-maintenance of Rs,1,500 per month to Shaheen instead ljaz shall be responsible and pay the costs of Shalicen's maintenance and children's education and all allied expenses. (c) Shaheen shall not repeat nor interfere in the domestic and all other affairs pertaining to Ijaz, Ijaz's family members, Ijaz's new wife and her family, ljaz's friends and acquaintances and any other matter directly or indirectly related to Ijaz. (4) The children shall not be taken out of house by Shaheen without the prior consent of Ijaz." The dispute appears to have not come to an end even thereafter and as per allegation of petitioner the resp ndent No,1 left his house, when the petitioner was posted at Wah and wa living with respondent No,1 and his children in House No,16 Gul Nastar Road Wah. After going away from the house of the petitioner, she filed a suit eeking dissolution of marriage as well as a suit for grant of maintenance to t e minoRs, The marriage between the parties was dissolved by the learned Ju ge Family Court vide judgment and decree dated 16-12-1990 on the ground Khula`. This order was challenged by the petitioner in Writ Petition No, 388 o 1991. It was dismissed by.This Court, hence, the judgment and decree passed y the learned Judge Family Court has been upheld. A decree for payment of maintenance to the minors was also passed on 5-8-1991. This decree was challenged in appeal, filed by the petitioner which has also been dismissed by the learned District Court, Rawalpindi vide judgment and decree dated 10-5-1993. The petitioner has not paid any amount of maintenance to the minors, in pursuance of the decree for grant of maintenance passed in favour of the minors, on the plea that prior to the filing of the application for grant of maintenance, he had sent some amount to the minors towards maintenance through money order which was refused and, therefore, thereafter the petitioner did not send any amount of maintenance to the minoRs, The petitioner filed an application under section 25 of the Guardians and Wards Act, 1890 seeking restoration of the custody of the minor children on 2-1-1990. This application was contested by the respondent No,1 on the ground that it is in the welfare of the minors to remain in her custody and, therefore, the application is liable to be dismissed. 3. On the basis of pleadings of the parties, the learned trial Court settled the following issues:-- (1) Whether it is in the welfare of the minors to be given in the custody of the applicant? (2) Order. 4. In support of his contentions, the petitioner produced Atta Muhammad as P.W.1 who has deposed that he has been going to the house of the petitioner to teach Holy Qur'an to the minor children. He has admitted in cross-examination that the petitioner was his commanding officer at Wah Cantt., therefore, he used to go to his house for the purpose of teaching of Holy Qur'an to the minor children of the petitioner. Naseer Muhammad P.W.2 is the brother-in-law of the petitioner who has stated that he has been going to the house of the petitioner and has been meeting the children also. According to the statement of this P.W. Atmosphere in the house of the petitioner was quite good and that the children have been living a very happy life in the house. He has stated that he visited the house of the petitioner in "Abudhabi" and stayed there for a period of 3 months. The children as well as respondent No,1 were living there very happy life and that the petitioner has been taking them out for the purpose of recreation etc. And has been taking them to various
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functions. He has further stated that he has been keeping his wife as well as children with him even on non-family stations such as Shinkiari. In cross-examination he has admitted that the petitioner has written a letter to the respondent No,1 that she should go away with her children but according to this witness that writing was by way of fun and that the respondent No,1 has told him that the petitioner has undertaken in writing the payment of maintenance amount of Rs,1,500 just by way of fun. Fida Hussain has been produced as P.W.3 who is a batman of the petitioner. He has stated that the petitioner has been living with his wife as well as his children a very happy life and the spouses as well as their children have been participating in various functions. This witness has admitted in cross-examination that he was living in a servant quarter and used to go to the house of the petitioner only when he was summoned. The petitioner himself appeared as P.W.4 and has also corroborated his version which is mainly to the effect that his treatment towrads his wife as well as his children used to be excellent and that he has never maltreated his wife or children and further that he has been taking his children for the purposes of recreation etc. And has been giving best of education to the children. He has stated that he has purchased computer and other goods as gifts for his children. In support of his plea regarding family relations he has produced photographs ExhA 1 to ExhA 18. He has also produced computer certificate Exh.A 19 and A 20 and also custom documents mark Al to mark A 4. He has categorically denied that he has ever maltreated his wife and the children. Regarding document Exh.D 1 according to the petitioner, it was written just by way of fun. However, in the subsequent part of the statement he has stated that he has written Exh. D 1 under pressure of respondent No,1. On my query the petitioner has admitted before this Court that during the course of proceedings pending in this Court, he was married to a virgin girl aged 27 years who was related to him as a distant distant cousin and that presently he is living in Rawalpindi with his second wife and that in case the children are given to him, he shall take them to live with his mother aged 70 years and unmarried sister who are presently living in his native village, in his house situated in Peshawar and that he will live with his second wife at Rawalpindi. The petitioner has further stated that after the retirement from the army he is doing nothing these days. Learned counsel for the petitioner during the course of these proceedings has produced two video cassettes, on showing the participation of his wife in a reception held on 23-3-1987 by Pakistan Embassy in Abu Dhabi and other showing the factum of taking his family members at various recreational places in Abu-Dhabi, Sharjah as well as at Al-Ain zoo. Two video cassettes have been marked as A.W.1 and A.W.2 and have been placed on record of this case, as the learned counsel has no objection to the production and placing of the vedio cassette on the record as a part of evidence. 5. As against the above evidence produced by the petitioner before the Guardian Judge, the respondent No,1 produced Zain-ud-Din as R.W.1 who has deposed that when he was in Islamabad on 7-11-1989, he came to know that the petitioner had divorced the respondent No,1 and that there was report got registered in Police Station Wah regarding the taking away of the children by respondent No,1. The witness has produced a copy of the first information report Exh. R2 and a copy of the affidavit Exh.R1. The respondent herself has appeared as R.W.2. She has stated that after her marriage with the petitioner, his treatment with her and the minors has not been good and he has been beating. Her. She also stated that the petitioner was not interested in the welfare of the minors and ultimately turned her out of his house alongwith minors after pronouncing Talaq thrice. Presently, she is teaching in PAF School, Islamabad. The minor daughters are studying in Model Girls High School, Islamabad whereas minor son is studying in PAF School, Islamabad. She is living in official residence provided by the School authorities wherein she is employed. She has stated that the children are getting very good brought up and. Education and she does not intend to re- marry and wishes to live with the sole aim of brought up and education of her minor children. In cross-examination the witness has admitted that even when minors were living in the house of the
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petitioner, they were getting good examination results and that she has been living for a period of 3-1/2 years with the petitioner alongwith her minor children in Abudhabi where the children had been getting education in institutions run by Pakistan Embassy. She has also admitted that she has been living with the petitioner on those stations which are non-family stations i,e, Shankari. She has stated that she is working as Grade-14 employee and that she does not know as to whether the petitioner has taken a second wife although he was engaged in 1988, when he was living in Wah. Tariq Hanif her brother has appeared as R.W.3 who has stated that the children are getting proper education and living with their mother who has been divorced by the petitioner and that the petitioner has failed to pay any maintenance to the minoRs, This witness is also living in Islamabad almost in the same vicinity wherein respondent is living. During the course of proceedings before this Court, three progress reports have been produced by the learned counsel for the respondent No,1 in order to show that the children are getting very good education, which have been marked as R.W.1. R.W.3, and have been placed on record without objection by the learned counsel for the petitioner. Statements of the minors have also been recorded in this petition to know their choice. 6. After hearing of arguments and going through the evidence, learned Guardian Judge, Rawalpindi vide order dated 25-7-1991 dismissed the application filed by the petitioner. This order was challenged in appeal filed by the petitioner which was dismissed by the learned Additional District Judge, Rawalpindi vide judgment and decree dated 1-2-1992, hence this writ petition by the father. 7. Mr. Bashir Ahmed Ansari, Advocate has appeared on behalf of the petitioner whereas Mr. M.S. Mchboob, Advocate has appeared on behalf of the respondents. 8. In support of this petition, learned counsel for the petitioner has raised the following contentions:-- (i) That the petitioner being a natural guardian, is entitled to have absolute supervision over the minors which incudes the right of physical custody inasmuch as there is no injunction of Islam according to which the right of Hizanat is recognized and could be enforced through a Court of law in favour of the mother in view of provision of Articles 2A and 227 of the Constitution of Islamic Republic of Pakistan, 1973 which enjoin upon Courts of this country including this Court to decide the matter in issue in accord with Injunctions of Islam and that the right of Hizanat except in case of suckling child being not recognized by any Qur'anic Verse or a confirmed Hadees, right of Hizanat recognised by Fiqah cannot be given effect to while deciding the custody of minoRs, In support of this contention learned counsel has placed reliance on cases of Mst. Zohra Begum v. Sh. Latif Ahmed Munawar (PLD 1965 (W.P.) Lahore 695) and Sultana Begum v. Mir Afzal and others (PLD 1988 Kar. 252). Hence impugned orders having been passed on the basis of principle of Hizanat are without a lawful authority. (ii) That the father being a natural guardian has an unquestionable right to get the custody of his minor children inasmuch as the presumption is that the welfare of the minors lies to the restoration of the custody to their father particularly when the minors are grown up girls and a son who is aged about 11 yeaRs, In support of his contention learned counsel has placed reliance on cases of Muhammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lahore 73), Muhammad Sadiq v. (MRs,) Sadiq Safoora (PLD 1963 (W.P.) Lah. 543). (iii) That the two Courts below have relied upon the document Exh. D1 which goes against respondent No,1 as in the said document there is a specific prohibition against the removal of the children and, therefore, the judgments rendered by the two Courts below are without a lawful authority as the same are based upon misreading of evidence particularly Exh.D1. (iv) That the two Courts below have rendered judgments, also relying upon the statements made by the minors although the said statements have no value while deciding the question of custody
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of minors as held in case of Mst. Aisha v. Manzoor Hussain and others (PLD 1985 SC 436) at page 438. (v) That even as per provisions of Fiqah contained in Mulla's Mahommedan Law the elder girl being about 15 years age, and, hence, having attained puberty the younger being also quite grown up girl and the son being more than 7 years of age, applying the principle of right of Hizanat, it is the petitioner, who is entitled to the custody of the minors and not the respondent No,1 whose right of Hizanat has come to an end due to the ages of the minoRs, (vi) That even if the principle of welfare of the minors is adopted for the purpose of decision of the application under section 25 of the Guardians and Wards Act, it is the petitioner who is entitled to the custody of the minors inasmuch as the evidence led by the respondent No,1 to the effect that the petitioner has been maltreating her as well as children stands falsified by her own statement, while appearing as R.W. 3 wherein she has admitted that the parties have been living quite a happy life and also by the evidence produced by the petitioner which consists of natural witnesses, one of whom is batman of the petitioner whereas the other is brother-in-law of the petitioner and has been living with his family members even in Abudhabi. According to the learned counsel photographs produced.By the petitioner before the lower Court in evidence as well as the video cassette produced before this Court clearly prove that the petitioner as well as the respondents have been living a very happy life and that he has never maltreated the respondent No,1 or the minor children and separation of respondent No,1 is nothing but a category of three categories of famous stubborness i,e, (stubborness of a king), (stubborness of a child), (stubborness of a woman). Hence, merely " because the respondent No,1 has got her marriage dissolved is not a circumstance as a result whereof it could be said that the petitioner was at fault and, hence, is not entitled to the custody of the minoRs, The petitioner being male Army Retired Officer enjoying a good health can well look after his grown up daughters as well as his son and wishes to give them education in better institutions as compared to the respondent No,1 who is a school teacher and has no male member to look after her as well as the minor children of the petitioner who are living there. Regarding admissibility of video cassettes as pieces of evidence learned counsel has relied upon case of Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. Former president of Defunct National Awami Party. (PLD 1976 SC 57 (u)). ' Elaborating his arguments learned counsel has contended that while dismissing the application filed by the petitioner, two Courts below have failed to follow the law declared by the superior Courts for determination of such like questions and the impugned orders having not been passed on the basis of Injunctions of Islam, are without lawful authority and hence, are liable to struck down in exercise of Constitutional jurisdiction of this Court which is also parental in nature. 10. As against the above arguments addressed by the learned counsel for the petitioner, learned counsel for the respondents has raised the following contentions:-- (i) That the two Courts below enjoying a special jurisdiction under the provisions of Guardians and Wards Act read with West Pakistan Family Courts Act, 1964, have rendered concurrent finding of fact and have come to the conclusion that it is in the welfare of the minors to live in the custody of their mother. This Court is not a Court of appeal while deciding the writ petition. Unless and until the impugned orders arc found to be without jurisdiction or coram non judice, this Court has no jurisdiction to interfere with the orders passed by the two Courts of exclusive jurisdiction. In support of his arguments, learned counsel has placed reliance on cases of Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139) and Sakhawat Ali and another v. Mst. Shui Khelay (PLD 1981 SC 454), Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322)..
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(ii) That in order to decide the application under section 25 of the Guardians and Wards Act the learned Guardian Judge had the jurisdiction to determine as to whether welfare of the minor lies in restoration of the custody of the minors to the father. (iii) In the case in hand it stands established on record that the petitioner has failed to pay maintenance to the minors in spite of there being an order for payment of maintenance having been passed by a Court of competent jurisdiction liability under which order is being contested by the petitioner till today and the petitioner has brought a stepmother in his house as his second wife. It will amount to causing of constant torture to the minors if they are restored to the custody of the petitioner who are presently living quite a happly life with their mother who intends not to remarry and is giving good personal care and is sufficiently meeting the educational needs of the minoRs, Consequently the impugned orders passed by the learned Guardian Judge upheld in appeal do not suffer from any legal infirmity or from any jurisdictional defect and hence, are not liable to be interefed with. According to the learned counsel the impugned orders tested on the touchstone of law declared by the superior Courts, do not require interference in exercise of writ jurisdiction of this Court. In support of his contention, learned counsel has placed reliance on cases of Rahimullah Ch. v. Hilali Begum (1974 SCMR 305), Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1978 SCMR 299), Mst. Sughra Begum v. Ashfaq Ahmed Butt (PLD 1981 Lah. 393), Tassadiq Hussain Shah v. Mst. Surraya Begum (1980 CLC 1802) and Ghulam Ullah Memon v. Mst. Rahid Begum (1983 SCMR 793). 11. In reply to the arguments addressed by the learned counsel for the respondents, learned counsel for the petitioner has reiterated his arguments referred to in the earlier part of this judgment and has further argued that much reliance has been placed by the two Courts below on the document Exh.D1 although this document clearly proves that it was the respondent No,1 who wanted to separate and, hence, who was premitted to separate even while living in the petitioner's house and, therefore, separation of the respondent No,1 being without any reasonable cause, she cannot keep the children away from the petitioner who is their natural guardian. He has further contended that the judgments, cited at bar by the learned counsel for the respondents are distinguishable inasmuch as the impugned orders passed by the Courts of special jurisdiction are based upon misreading of evidence and at any rate this being the case where this Court also enjoys the parental jurisdiction, it is a fit case where interference should be made particularly when as per provisions of Qur'an and Sunnah it is the father who is entitled to the custody of the minoRs, It is contended that case of 'Mst. Feroze Begum' is distinguishable on facts inasmuch as the mother in that case had left her village and had come to the city for the purpose of giving education to them and husband has taken second wife out of whom he had children and on its own facts it was held that in that case it is not in the welfare of the minors to restore their custody to their father. In the case in hand, according to the learned counsel for the petitioner facts are entirely different and the mother is keeping the children away from the father without any just and legal cause for the sake of her own (stubborness) and not to look after interest and welfare of the minors, which she is not in a position to do. 12. On 10-5-1993 when the case was fixed for arguments, before starting of the arguments by the learned counsel for the parties, in pursuance of my order dated 9-5-1993, the minors appeared in the Court. They met the petitioner for about half an hour and thereafter before hearing the- arguments I recorded their statements which are reproduced as under:-- "Statement of Miss Sadaf Ejaz, aged about 15 years, resident of Saif International, Kalsoom Plaza, Blue Area, Islamabad: ' I am studying in Islamabad Model College for Girls in 10th Class. During the time when I was living with my father, proper attention was not given to me. He did not take much care about my studies and welfare. He was not a loving, communicative and concerned father. Presently, I am living with
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my mother who is sufficiently catering for my personal as well as educational needs and that she will like to stay on with her mother. Due to this litigation regarding custody initiated by her father, she as well as the other two children are very much disturbed inasmuch as it is adversely reacting upon their studies and she will like if this litigation ends. Her mother has never been harsh and has never persuaded her not to meet her father. On Eid and other such occasions, her father does not come to see her nor sends any gifts or cards. At any rate, for the present, she is more concerned with her studies, therefore, the controversy should come to an end so that she could get proper education. When she is grown up she will definitely be meeting her father. In the beginning treatment of my father used to be very good." ' R.O. & A.C. ' 10-5-1993." (Sd.) Judge ' Statement of Miss Wasaf Ejaz minor aged 13-1/2 years, resident of Saif International Kalsoom Plaza, Blue Area, Islamabad. "In the beginning, attitude of my father-was good but subsequently he started neglecting us. I want to live with my mother who is sufficiently catering for my personal as well as educational needs. I am disturbed due to this litigation and am more concerned with the completion of my education and that I will be meeting my…
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