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Petitioner: Syed RAZA ABBAS VS Respondent: Mst. SANA SAEED SATTAR and 2 others
Court Name: Sindh High Court Judge(s): Aftab Ahmed Gorar Title: Syed RAZA ABBAS vs Mst. SANA SAEED SATTAR and 2 others Case No.: Constitution Petition No, S-955 of 2012 Date of Judgment:2014-06-25 Reported As: 2015 YLR 489 Result: Petition dismissed
Judgment ORDER ' AFTAB AHMED GORAR, J.---Through this Constitutional Petition the petitioner Syed Raza Abbas has impugned the order dated 10-7-2012 passed by learned Vth Additional District Judge, Karachi East in Family Appeal No,21/2012 whereby he dismissed the appeal filed by the petitioner and maintained the order dated 19-1-2012 passed by learned XIIIth Family Judge, Karachi East in G&W Application No,261/2011 whereby he dismissed petitioner's application under section 25 of the G&W Act for the custody of minors. ' Precisely, the facts of the case are that petitioner Syed Raza Abbas filed application under section 25 of Guardians and Wards Act against respondent No,1, Mst. Sana Saeed Sattar, for the permanent custody of twin minors namely Syed Zarrar Abbas and Syeda Tehzeeb Abbas both aged 03 years wherein he stated that he was married with respondent No, 1 on 10-10-2008 according to Figah Jafaria against the deferred dower of Rs,15,001 was paid by him through Pay Order. From the said wedlock two twin wards, named above, were born on 23-10-2009 who are in the custody of their mother viz. Respondent No, 1. It was further stated in the application that the petitioner provided cozy life and mirth beyond the imagination of the respondent. The petitioner, being an uxorious potty husband never injured her pride and never provided a chance of complaint of whatsoever nature. He further asserted that from the very inception of marriage association the respondent proved herself to be an arrogant, bellicose, virago, jilt, slattern and belligerent. The petitioner found that she was under influence of period medicine. According to him, as the respondent was mentally disordered, she could not retain the custody of the wards. He further stated that he bore the expenses of extricate and premature delivery amounting to Rs,2,00,000 or Rs,2,50,000. He further alleged that the respondent being a psycho patient and under the influence of her mother,
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was unable to tend or look after the minors properly. The petitioner provided two nurses for 24 hours for welfare of the minors. He also got renovated the house of the respondent from his own pocket and also paid Rs,6,00,000 to his mother-in-law through cheques which has not been returned as yet. He also averred that that he got admitted both the children in a renowned and well reputed institute/school namely Messrs Kids and Co. Situated in Clifton Karachi and paid quarterly fees for the months of October, November and December, 2010 but the respondent did not follow the rule of the institute where attendance of the mother along with the children in the institute is necessary. The petitioner with consultation of the respondent got entered the name of both the minors in Asma Montessori in advance and paid admission fees. According to him, on 4-1-2011 the respondent left petitioner's house along with the valuable jewelry. Despite petitioner's request to join back him as a faithful wife, the respondent has refused to do so, resultantly the petitioner divorced her on 5-1-2011 according to Fiqah Jafria. After divorce the petitioner requested the respondent for custody of the minors but she flatly refused and in these circumstances, according to him, the life of the minors was at stake and their future seems to be obscure. He also pleaded that the respondent has adverse interest regarding welfare of the minors, as such the wards are in grave danger and their welfare is also at stake, thus he is entitled to the custody of minors as he is capable in all respects to pay advance tuition admission fees in a renowned Montessori of the city, whereas the respondent is psyche patient and unable to take care of the minors. ' Respondent No,1 contested the said application under section 25 of the G&W Act and filed written statement denying the allegations mentioned in the application. She denied that the petitioner provided any luxurious facilities to her and she tolerated his violent treatment in the hope of winning over the petitioner by patience and virtue, however, the mental and physical abuse meted out to her did not abate. She further stated that she is well educated lady and she got her MBA from USA and M.A. In International Relations from Karachi University. According to her, on 19-11-2009 the petitioner pushed her against the wall with the result her shoulder was got fractured. The allegation of using period medicine was strenuously denied by her. She filed suit recovery of maintenance and medical expenses. She got the treatment of fertility at the request of the petitioner and bore herself the expenses of Rs,4,22,153 by taking loan from her mother. She further stated that the house situated in DHA Phase-I Karachi belongs to her and she had shifted to the said house at the request of the petitioner. The renovation charges of the said house amounting to Rs,06 lacs were borne by her mother. She did not deny the payment of fees of minors by the petitioner in the school namely Kids & co. For the month months of October, November and December, 2010, however she averred that she continued to take the children to the said school and has herself paid the fees of the school for the months of January, February and March, 2011. According to her, during the period when she was residing with the petitioner, on numerous occasions he attepted to pollute the fragile minds of the wards by trying to turn them against their real mother. She stated that the petitioner is violent and unstable person and is not entitled to retain custody of the minors as it will against the welfare of the minors. She prayed for dismissal of the application. ' On the pleadings of the parties, learned Family Court formulated the points for determination and after recording of evidence, hearing the counsel for the parties, the application under section 25 of the G&W Act was dismissed vide order dated 19-1-2012. The said order was challenged by the petitioner in Family Appeal No, 21 of 2012 which was also dismissed vide the impugned judgment dated 10-7-2012, hence this petition. During the pendency of this petition, an application under Order I Rule 10, C.P.C. Has been moved by (i) Syed Zia Abbas, (ii) Mrs.Sumina Zia and (iii) Mrs. Sidra Jabeen Raza, father, mother and third wife of the petitioner respectively for impleading them as petitioners in the instant petition as they have been aggrieved by a number of findings given against them.
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' I have heard the learned counsel for the parties and have perused the material available on the record. ' Learned counsel for the petitioner contended that the two Courts below erred in law and on facts while passing the impugned order/judgment. He further contended that the impugned orders suffer from gross misreading of evidence/ documents and the same are bad in law, contrary to facts of the case and violative of the provisions of Guardians and Wards Act. He further contended that the respondent is not qualified to retain the custody of the minors as she is a woman of bad character and is leading an immoral life. In support of this plea, learned counsel referred to para 5 of her counter affidavit dated 24-9-2011 wherein the respondent has stated that during marriage the petitioner forced her to have sexual intercourse with other individual and wanted to be present in the same room to see the act. He further contended that the respondent smokes Shisha and Cigarette and her mother also does so, therefore it would not be in the welfare of the minors to let them live in such atmosphere. He further contended that the respondent has removed the wards from the petitioner to a distant place, as such she is disqualified to retain the custody of the minors by virtue of Rule 157 Chapter 14 of the Muhammadan Law. He further contended that the petitioner belongs to a prosperous and flourishing family and petitioner's father is a prominent senior political leader and has held very high positions such as 'Federal Minister' and is also former President Students of Inter Universities of Pakistan and the petitioner himself is highly qualified having passed MBA (Finance) from Iqra University, Karachi. He further contended that the petitioner got, admitted the minors in Asma Montessori and paid admission fee as well as advance tuition fee upto October, 2011. ' Learned counsel for the petitioner has laid emphasize on the point that the petitioner is follower of the Fiqah Jafaria Sect, whereas respondent No,1 is a Sunni Muslim and according to Shia Law, custody of a son above two years of age and that of daughter above 7 years of age is to be retrained by father, as such the petitioner is entitled to be restored the custody of son who has crossed the age of 2 years and as both the children are twin, they cannot live separately, therefore custody of the minor girl should also be given to him. In this connection he relied upon Rule 156(ii) of Chapter 14 of the Muhammadan Law. He stressed that being a Sunni Muslim, respondent No,1 will not be able to give Shia Muslim teachings to the minors which is against the welfare of the minors. According to him, this important aspect has been ignored by the two courts below while delivering the impugned order / judgment which are liable to be set aside. In support of his contentions, he relied upon the case-law reported in PLD 1958 (W.P.) Karachi 150, 1979 CLC 4, 2010 YLR 1309, PLD 1961 (W.P.) Lahore 768, 2005 CLD 398 [Lahore], PLD 2002 SC 84, 2002 CLC 1206 [Peshawar], 1986 CLC 1680, 137 IC 219, PLD 1975 Lahore 86, PLD 1972 Peshawar 1. ' On the other hand, learned counsel for respondent No,1 contended that the constitutional petition against the concurrent findings of the two courts below is not maintainable and is liable to be dismissed in limine. He further contended that the respondent being real mother is in the lawful custody of the minors, as such the impugned judgments do not require any interference. He further contended that the petitioner has contracted third marriage with a lady namely Sidra on 5-6-2011 and obviously the step mother cannot be equated with real mother and grave injustice would be caused to the minors if they are forced to live in the supervision of a step mother, particularly in view of the fact that the petitioner's newly wedded wife has also given birth to a baby who is at present two years of age. He further contended that, on the other hand, respondent has devoted her life for the welfare of the minors and has made a categorical statement before the trial court that she would not contract second marriage. He further contended that the nature of mind and character of the petitioner could be gathered from the fact that due to maltreatment, torture and cruel behavior of the petitioner, the respondent had to leave the house of the petitioner on 4-1-2011 and admittedly on the very next date i,e, 5-1-2011 the petitioner divorced, her without making a
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single effort to resolve the dispute and just after 5 months of the divorce he contracted third marriage. He further contended that the petitioner had admitted in cross-examination that he has no source of income and is completely dependent upon his father's income, therefore, it would be highly unjust and against the welfare of the minors to handover their custody to a man who is no source of income and is jobless. In this connection, he further submitted that the petitioner contested elections from PS 130 and submitted his Declaration which shows his total yearly income to be "Below Tax Level" and in the said declaration petitioner has further stated that he is living in his parents' house and all his expenses are borne by his parents. He further contended, on the contrary, the respondent is a highly educated lady and possesses sound financial position. She owns one Bungalow in Sea View Building No,9, one bungalow in Phase-I, DHA and a number of other moveable and immovable properties in different areas of Pakistan in her exclusive name, besides, her monthly rental income is Rs,70,000. According to him, she is getting the minors studied in renowned school/institute and has paid about one million of rupees on the study of the children etc. He further contended that the petitioner lives in a five bedrooms house owned by his father wherein the petitioner resides along with his third wife, brother, sister-in-law, mother, father and a sister, whereas the respondent lives along with the minors in a 2000 Sq. Yards 12 bedrooms house and the minors have a playroom and a separate room specifically meant for the minors, as such removing the minors from such a comfortable living and forcing them to live in a congested house, would have negative impact on their personalities. As regards, the plea of the petitioner that according to Shia Law custody of a, son above two years of age and that of daughter above 7 years of age is to be retained by the father, he contended that in the whole application under section 25 of the G&W Act, which reflects the basic grievance of the petitioner, not a single word has been said on this point and it is only when the application under section 25 has been rejected, that the petitioner has improved his case and taken new plea. According to him, even otherwise paramount consideration in respect of custody of the minors is the welfare of the minors which would prevail over the Personal Law, therefore the findings of the two courts below which are based on welfare of the minors cannot be disturbed in exercise of constitutional jurisdiction of this court. He further contended that even otherwise, mother of the petitioner, his first wife Asima Mirza, petitioner's brother's wife Nida are Sunni, besides petitioner's sister was married three times with persons following Sunni Sect, as such the petitioner has now changed his position with mala fide intention and for ulterior motives. He prayed for dismissal of the Petition. In support of his contentions, he relied upon the case-law reported in 1996 CLC [Karachi] 01, 2000 SCMR 838, 2004 SCMR 821, 2008 SCMR 480, 1992 CLC 1487, 1998 MLD 1003, 2005 MLD 256, 2012 CLC 759, 2013 CLC 601, 2013 CLC 1749, 2013 CLC 1784, 2013 CLC 568, 1998 SCMR 1593, 2010 CLC 1281 and 2012 CLC 784. ' Before adverting to the main petition, it would be proper to decide the fate of the application under Order I Rule 10, C.P.C. Filed by the father, mother and third wife of the petitioner for impleading them as petitioners in the instant petition. Rule 10(2) to Order I C.P.C., inter alia, provides that the Court may at any stage of the proceedings, order that the name of any person who ought to have been joined, whether plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit. From the language of the above said provision of law, it is evident that the purpose of impleading any person in the proceedings is to effectually and completely adjudicate upon and settle all the questions involved in the proceedings. The instant proceedings relate to the custody of minors between real mother and father of the minors, and obviously all the questions relating to such proceedings, could be effectually and completely adjudicated upon without the insertion of any other person. The main ground taken in the application is that the intervenors have become aggrieved by certain findings given against them in the impugned judgments. First of all, I have not been able to lay my hands on such findings and even otherwise, if
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they have become aggrieved by any such findings, they are at liberty to resort their remedy available under the law but, it cannot be said that the issues involved in the present proceedings could not be effectually and completely adjudicated without their presence or that they are proper or necessary parties in these proceedings. In this view of the matter, the application stands dismissed. ' Now, while adverting to the main petition, I would like to deal with the main contention of the petitioner that according to Shia Law, a father is entitled to retain custody of a son above two years of age and that of daughter above 7 years of age, and as the petitioner belongs to Fiqah Jafaria Sect, he is entitled to be restored the custody of son who has crossed the age of 2 years and as both the children are twin, they cannot live separately, therefore custody of minor girl should also be given to him. I have thoroughly gone through the entire contents of application under section 25 of the G&W Act filed by the petitioner and, despite my best efforts, have not been able to find a single word having been uttered by the petitioner on this plea, as such the contention of the learned counsel for the petitioner. In this view of the matter, obviously the petitioner has tried to improve his case. Secondly; in all the cases relied upon by the learned counsel- for the petitioner to support this plea, both the parties belonged to Shia Sect. In support of this plea, learned counsel has relied upon three decisions; (I) PLD 1958 (W.P.) Karachi 150, 1979 CLC 4 [Lahore] and 2010 YLR 1309. In the first case at page 152 it was observed, "...Therefore the applicant was not entitled to her custody, under the Shia Law, which is the personal law of the parties." In the second case at page 5 it was observed, "It is also not controverted that the boy being more than 2 years .Old, the presumption according to Shia law, which governs the parties, is that the welfare of the minor boy lies in his custody being 'given to his father." Likewise, in the third case (2010 YLR 1309) at page 1311 in para 5 it was observed, "...Minor boy being more than two years old presumption according to Shia law governing parties lies in favour of the father." From above, it is crystal clear that in the cited cases both, the husband as well as the wife, belonged to Shia Sect, whereas in the instant case this is not the position, for the reason that while the petitioner claims to be follower of Fiqah Jafaria, admittedly respondent No,1 belongs to Sunni Muslim Sect. In this view of the matter, the judgments cited by the petitioner's counsel would not apply to the present case because, if the petitioner claims that being a follower of Shia Sect, he is entitled to custody of the minor according to Shia Law, at the same time there is also due weight in the plea of the respondent that being a Sunni Muslim, she is entitled to the right of 'Hizanat' of the boy upto 7 years and that of daughter till she attains puberty. In this view of the matter, it would be in the fitness of things that the fate of custody of the two minors should be decided keeping in view welfare of the minors which, in fact, is the paramount consideration in respect of custody of the minors and which would prevail over the Personal Law, particularly in the peculiar circumstances of the present case. In forming this opinion, I am fortified by the judgments of the superior courts. In the case reported as Mst. Firdous lqbal v. Shifaat All and others (2000 SCMR 838) Honourable Supreme Court held as under:-- "The custody of a minor can, however; be delivered by the court only in the interest of welfare of the minor and not the so-called right of one parent or another. It is true: that a Muslim father is lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, he noticed that right of the father to claim custody of minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and circumstances of each case." ' In the case reported as Khan Muhammad v. Mst. Surayya Bibi and others (2008 SCMR 480) the apex Court observed:- "It is worth mentioning that right of the father being natural: guardian of minor, is subject to welfare of the minor because the overriding fundamental and paramount important consideration is always the welfare the minors."
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' In 1992 CLC 1487 it was held:-- "Welfare of a minor is the paramount consideration which must weigh with and influence the Court in deciding as to whom his/her custody should be entrusted. Further, welfare is a question of fact to be resolved on material placed before the Judge and not upon mere presumption. Personal Law, in this behalf is subordinated to that of welfare of minor, which alone must govern the question relating to his/her custody." ' In the case reported in 2013 CLC 1784 a Division Bench of Peshawar High Court held as under:-- "It is true that father has preferential right under personal law to get custody of male child after period of Hizanat is over. But, it is also accepted and being persistently followed on basis of numerous findings of superior courts that welfare of minor is always of paramount consideration while determining question of custody. Personal Law is not to be allowed blindly or in automatic fashion, but has to be decided objectively." ' Now I advert to analyze the pleadings of the parties so as to see as to within whose custody the welfare of the two minors lies. Admittedly, both the twin minors are now aged about 5 years. It is also an admitted position that the petitioner has contracted third marriage with a lady namely Sidra and from this wedlock he has a baby presently aged two years. Needless to emphasize that lap of a real mother is God's own cradle and there is also not a slightest doubt in the fact that a step mother could not be equated with a real mother, particularly when she (step-mother) has her own minor baby. On the other hand, respondent No,1 has made a categorical statement which also finds mention in the Order of the Family Court that she would not contract second marriage and that she would devote her entire life for the welfare and wellbeing of the minors. In the case of Mst. Firdous Iqbal (supra) following observations were made by the honourable Supreme Court:- "The minor would be exposed to the onslaughts of the step-motherly treatment of his second wife. There would be no one to stop the step-mother from the well-known step-motherly treatment. It was in these circumstances that the learned Court below had concurrently found as a fact that the welfare of the minor lay in leaving him to the custody of the real mother through her parents rather than giving him to the respondent who is himself away from his household which had been left to the charge of the stepmother." ' In the case reported in 1980 CLC 1802 it was held by the honourable Supreme Court as under:- "Father may render himself unfit for custody of minor child by bringing in a step-mother. Stepmother cannot be any substitute for real mother in rearing up of minor." In another case reported in 1989 SCMR 1277 it was held by the apex Court as under:-- "Father taking second wife and having children from her, not physically and mentally safe in presence of his step-mother if his custody is handed over to his father." ' Another important aspect, for deciding the welfare of the minors, is that respondent No,1 in para 22 (iv) of her Objections has stated that the petitioner in his written statement in Suit No, 513 of 2011, filed by respondent No,1, stated on oath he has no business, nor has any kind of service. They are living in a joint family system and being the elder son he helps his father in his business without any salary. It has further been asserted in the objections that while filing Declaration on oath for contesting elections from PS 130 he stated that his yearly income for the year 2012 is Rs,2,50,000 and the monthly income comes to Rs,20,833 only and that his total income is 'Below Tax Level' and that he is living with his parents in parents' house and all his expenses are borne by his parents. Copy of declaration has also been annexed with the Objections. The petitioner has not been able to controvert this fact either by filing Rejoinder or any other written material and even learned counsel for the petitioner during the course of arguments could not successfully controvert such assertions. Even the contents of the instant petition too are silent as to what are the petitioner's own earnings. The petitioner has merely stressed in the petition on the fact that as he is highly
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qualified person, therefore he has the means and resources to maintain the minors in a better way than the respondent. In para 16 of the petition he has stated that his father owns a petrol pump at National Highway which is being run by the staff and the petitioner uses to visit the Pump in order to check…
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