W.P.No.20752 of 2009.
(Mr. Justice IJAZ UL AHSAN Lahore High court
Mst.Zahida Parveen Vs Muhammad Nawaz etc.
The petitioner challenges order dated 31.08.2009 passed by the learned Addl. District Judge, Gujrat, through which he set aside order dated 11.06.2009 passed by the learned Judge Family Court, Gujrat whereby respondent’s application for custody of his minor son was dismissed.
2. The respondent filed an application under section 25 of the Guardian & Wards Act against the petitioner and Bahadar Khan for obtaining custody of his minor son Hassan Nawaz, who was born on 01.01.2002. The marriage between the parties had earlier been dissolved on 26.05.2005. The record indicates that after dissolution of marriage both parties have re-married. Custody of the minor was sought by the respondent on the ground that the petitioner was residing with her husband, who was a labourer and had no permanent source of income and they were both illiterate. Further according to the allegations contained in the application, the petitioner had left the minor child with her father who was not in a position to take care of
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the minor whose health was suffering and the minor was not being brought up in a healthy and congenial atmosphere. Respondent No.1 claimed that he is an educated person, owns agricultural property and is also employed as a school teacher. He is in a much better position to provide a healthy and conducive atmosphere for a young child to grow up. Since he teaches in a school, he can keep the child with him for a major part of the day and be a good role model for him. Despite having contracted second marriage, respondent No.1 claimed that his second wife is enable to bear a child and the minor will not be subjected to the proverbial step motherly treatment.
3. The parties adduced oral as well as documentary evidence before the trial court. The position taken by the respondent No.1 before the trial court did not prevail. The application was dismissed and the custody of the minor was handed over to the petitioner by the learned Family Court. The aforesaid order was challenged in appeal before the learned Addl. District Judge, Gujrat. Vide order dated 31.08.2009, the appeal filed by respondent No.1 was accepted, the judgment and decree of the Family Court was set aside and custody of the minor was ordered to be handed over to respondent No.1. This order has been challenged before this Court by the mother, who has been deprived of the custody of her 8 years old son.
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4. The learned counsel for the petitioner submits that the respondent No.1 has contracted second marriage and does not care about the welfare of the minor. The petition for custody was just a device to avoid payment of maintenance. Further submits that the minor is deeply attached with his mother, who is taking good care of him and is educating him in a proper manner. Adds that poverty of the mother cannot be made basis for taking away custody, if it is otherwise in the interest and welfare of the minor.
5. The learned counsel for respondent No.1 has supported the order of the learned appellate court. He submits that the order is legally sound and is based upon evidence on record. From the material on record it is evident that the welfare of the minor vests in his custody being handed over to the respondent.
6. I have heard the learned counsel for the parties and have also examined the record with their assistance. It is evident that the minor is now about 8 years old. He is at an age when the environment that he lives in and the role models that he has, are of paramount importance. In addition, this is a stage when foundation of his educational career is being laid. In case the child is kept in an environment of uncertainty and there are flaws in his educational foundation and upbringing the entire structure of his personality as well as his career in future is
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likely to be effected. It has come in the evidence that neither the petitioner nor her husband have a stable income and the fact that she has left the minor to be raised by her old father does not augur well with the goal of providing a conducive environment for a child to grow up. It is correct that it is the obligation of the father to provide adequate funds by way of maintenance to the mother to meet the needs of the child. Yet, considering the financial situation of the mother and in the presence of an illiterate step father, who has no source of income, the possibility of such funds being misapplied cannot be ruled out.
7. On the other hand the record indicates that the respondent No.1 is financially sound. He owns agricultural land and is employed as a school teacher. Despite having re-married, he does not have any child from the second marriage. It would be possible for him to keep the minor with him in his school, supervise his activities and directly take care of his educational, financial, psychological and emotional needs. Boys of that age need a father or a father figure in their lives for proper and healthy development of their personalities. Therefore, unless there are compelling circumstances to the contrary, which are not present in the instant case, it would be doing the child service if he were to be deprived of the opportunity of growing
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up with the support in the company and under the direct supervision of his real father.
8. As far as the question of living with a step mother is concerned, it may be stated that all step mothers are not Cinderella’s step mothers. Such type of casting in human relationships should be avoided, unless there is any direct evidence of cruelty or ill will. Even otherwise the child being of school going age will spend most part of the day and most part of the week in school in an academic environment under the supervision of his father. Therefore, the possibility of ill treatment, even if existent in the facts and circumstances of the present case is quite remote.
9. It is settled that the paramount consideration in determining the question of custody is the welfare of the minor. It is noticed from the record that the educational needs of the minor have not been properly catered for by the petitioner. Despite being about 8 years old, the child is still in class-1 and appears to have been admitted in a school in order to avoid a plea being taken by respondent No.1 that the child is not being sent to school. Further respondent No.1, being financially stable and employed in a school is in a much better position to meet the material needs of the child. Respondent No.1 in the opinion of this Court can also provide better guidance and supervision
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as compared to the husband or father of the petitioner, both of whom appear to be illiterate. In addition the need of the minor for maternal love and affection can be met by providing adequate visitation rights to the petitioner so that she can spend a reasonable amount of time with the minor. This aspect has been addressed by the learned first appellate court by directing that the petitioner is still entitled to meet the minor on first Sunday of every month from 11:00 a.m. to 2:00 p.m. I would add that the minor should also be sent to live with the mother (if she so desire) for a period of one week during winter vacations and two weeks during summer vacations.
10. The learned counsel for the petitioner has not been able to convince me that the learned first appellate court has acted illegally or in excess of its jurisdiction or there is any jurisdictional error in the impugned order. I am, therefore, not inclined in exercise of constitutional jurisdiction of this Court to interfere in the findings of the learned first appellate court, except to the extent mentioned above. This petition is, therefore, partly allowed in the aforesaid terms.
Petition partly allowed.