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Tuesday, April 6, 2010

Family Court Act, 1964 Section 25 Custody of Children

Family Court Act, 1964
Section 25
Custody of Children

Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890

A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall, in dealing with matters specified in that Act. follow procedure prescribed in that Act.

Court Decisions
Appeal in guardianship matters-District Judge empowered under Rules framed under Act XXXV of 1964 to transfer guardianship cases to civil Judges-Civil Judge when acting as Guardian Judge, appeal against his order as per cl. (b) of subsection (i) of S. 14, held, lies to District Court and not to High Court P L D 1981 S. C 454 P L D 1972 Kar. 410 and P L D 1973 Kar. 503 approved. P L D 1969 Lab. 834 ; P L D 1972 Pesh. 1 ; P L D 1975 Lab. 334 and P L D 1977 Lab. 911 not approved. P L D 1967 S C 402 ; P L D 1957 S C (Ind.) 448 and P L D 1964 S C 520 distinguished.

Application for the appointment of guardian of minors-List of witnesses was not filed separately but the names of witnesses were mentioned in the body of plaint by the petitioner--Petitioner filed an application seeking permission to submit list of witnesses-Family Court dismissed the application on the ground that the same was not filed within seven days after the settlement of issues-Petitioners were not seeking the issuance of summons for the appearance of any witness rather they desired the Court to permit them to examine their witnesses whose names and addresses were already disclosed in the body of plaint-Validity-Parties had absolute right to produce any witness and it was incumbent upon the Family Court to examine such witnesses subject to the requirements of law. 1999 M L D 2153

Children's capability of making intelligent preference about which of the parents they choose to live with. Minor's opinion was never obtained by District Judge while deciding question of their custody. Children being present in Court, High Court obtained their opinion and they were intelligent enough to express their opinion as they have been studying in good schools. Minors, stated that they. would prefer to live with their mother. Petitioner mother would not be disentitled and disqualified to retain custody of minors on the ground that she has contracted second marriage with a person who was not related to minors and is stranger. Courts would preserve to the mother custody of children if interest and welfare of minor so demanded. Impugned order of District Judge whereby he had declared father (respondent) to be the guardian of person and property of minors was set aside. Order of Guardian Judge was modified to the extent that -father (respondent) was allowed to see his children once in a month provided their educational programme was not disturbed. Minor Children can stay with father once in a month preferably on week ends and also stay for full day on their birth day and for two days on every Eid. P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.

Compromise between the parties - Compromise or an agreement between the parties does not absolve Guardian Court from ifs basic responsibility to safeguard and protect the interest and welfare of the minor, PLD 2001 Kar. 371

Duty of Guardian Court to examine subsequent developments - Scope - Compromise, agreement or consent order cannot be lightly upset/rejected by Guardian Court while re-examining question of welfare of minor in the given facts and circumstances of each case - Where earlier order passed by Guardian Court is intended to be modified/altered, the Guardian Court should proceed with, the presumption that the compromise, agreement or the consent order passed in earlier guardianship proceedings was in the best interest and welfare of the minor, and therefore the Court should examine the subsequent developments and allegations which were made basis for seeking modification/change in the earlier order. PLD 2001 Kar. 371

Custody of minor in all cases cannot be effectively settled by private compromise - Court's powers with regard to custody of minor are in the nature of parental Jurisdiction, and it must act in a way a wise parent would do - Expression 'welfare' would be construed in a way so as to include in its compass all the dominant factors essential for determining the actual welfare of the minor - Technicalities of law are not adhered to in such type of cases. PLD 2002 S.C 267

Grandmother agreed to hand over custody of minor to father on her attaining age of seven years - Father thereafter contracted second marriage, who, had an issue from second wife - Father's application for custody of minor by implementing such compromise was accepted by Guardian judge, which order was upheld by Appellate Court and High Court - S.C granted leave to appeal to consider, whether in such circumstances, irrespective of settlement between the parties. Guardian judge was not bound under law to decide question of custody of minor keeping in view her welfare. PLD 2002 S.C267

Custody of children and guardianship-Revision under S. 115, C. P. C. before High Court Family Court, while exercising jurisdiction created by Guardians and Wards Act, : 890 continues to retain its identity as such and such proceedings before Family Court are proceedings within meaning of S. 17(1), Family Courts Act, 1964 Orders passed by Family Court in course of proceedings under Guardians and Wards Act, 1890, held, not amenable to revisional jurisdiction of High Court under S. ,115, C. P. C.-View in Parveen v. Muhammad Ashar P L D 1975 Lab. 334 held, not a valid view-[ P L D 1975 Lab. 33 and P L D 1969 Lab. 834 dissented from]. P L D 1984 Lah. 332 P L D 1981 S C 454 fol.P L D 1975 Lab. 334 and P L D 1969 Lab. 834 dissented from. P L D 1975 Lab. 448; P L D 1972 Kar. 410 and P L D 1975 Kar. 448 approved P L D 1977 Lab. 911 distinguished. P L D 1970 Lab. 641; P L D 1969 Lab. 834 and P L D 1977 Lab. 911 ref. 1983 C L C 183 mentioned.

Custody of minor (female suckling child) Father of minor was away to United States. In such a situation, mother was most suitable and appropriate guardian of female suckling child. Mere fact that father returned to Pakistan with intention to reside here permanently would not nullify impugned order. It shall, however, be open to father to prove during trial of petition under Section 25 01 Guardians and Wards Act, that he intends to' reside in Pakistan permanently and that welfare of minor would be promoted if her custody is allowed to him. No good ground to interfere with impugned orders. P.L.J.1998 Lah. 1671 = 1999 MLD 943.

Custody of minor boy. Respondent/father's application for lodgment of minor on Aitchison College as a boarder under his care and supervision was dismissed by Guardian Judge. Subsequently however, respondent's application for review/recall earlier order was accepted by Guardian Judge and he withdrew his earlier order directed that minor be admitted as a boarder in Aitchison College. Order regarding custody of minor can be charged till the matter was finally determined, welfare of minor being of paramount consideration. Once order of custody had been passed by a Court of Competent Jurisdiction after full deliberation, same could not be review/changed as of right unless and until some material change had taken place i.e., where lady marries a stranger, in that eventuality any change can be made. Minor in response to direction of Court had appeared before Court and had categorically stated that at no cost he would like to go as a boarder tm Aitchison College, that be was getting his education in a good atmosphere from his present school by staying with his mother and maternal grand parents. Minor's version keeping in view his age of discretion and his intelligence which he had demonstrated in Court could not be brushed aside lightly. In case minor was lodged as a boarder in Aitchison College, he would be deprived of love and affection of his mother as well as maternal grand parents. Above all minor's younger sister for no fault of her own' would be deprived of the company of her only brother. Minor having got himself fully adjusted at his present institution, Court would not like to uproot him from there. Orders of lodgment of minor in Aitchison College as a boarder was thus, declared to have been passed without lawful authority having no legal effect. P.L.J.2000 Lah. 2305

Minor boy is of more than 7 years of age so presumption of his welfare would obviously lie in favour of appellant, the father. Nothing has brought on record suggestive of fact that appellant ever neglected to take care of his minor son and provide any maintenance to him or his mother and it was only after initiation of maintenance proceedings against appellant that he moved an application for securing custody of minor. S.C.is of the view that mere fact that order of maintenance in favour of minor by court under section 488 Cr.P.C. would not disentitle person from custody if he is entitled to it under personal law. P.L.J.1996 SC (AJK) 230 = 1996 CLC 1534.

Custody of minor child-Father got from mother custody of minor child by force during pendency of case before Guardian Court-Appellate Court directed the Guardian Court to restore the position with regard to custody of minor as it was at the time of filing of case and decide same on merits keeping in view welfare of the minor-High Court in exercise of Constitutional jurisdiction refused to interfere with order of Appellate Court-Validity- Father's apprehension that in the event of production of minor before Guardian Court for visitation of mother, she might kidnap minor, was unfounded and misconceived-Supreme Court while declining to express any opinion on the merit of the case lest it should prejudice the interest of either of the parties, observed that custody of minor must be regulated by Guardian Court in accordance with consistent practice and law of the land having regard to the supreme interest of welfare and well-being of the minor-High Court had not committed any error of law by' refusing to interfere with discretionary order of Appellate Court-Impugned order did not suffer from any legal infirmity or jurisdictional error warranting interference by Supreme Court-Leave to appeal was refused in circumstances. 2002 S C M R 371

Custody of minor girl. Trial Court and First Appellate Court granted custody of minor girl to mother. High Court in exercise of its Constitutional Jurisdiction set aside concurrent findings of Courts below and handed over custody to father. Whether in facts and circumstances of case, High Court was Justified in pressing into service its Constitutional Jurisdiction for setting aside concurrent Judgments of two competent Courts leave to appeal is granted. Execution proceedings pursuant to Judgment of High Court are stayed. P.L.J.1997 SC 1160 = 1997 SCMR 425.

Minors remaining in custody of their step-mother after death of their real mother with whom their father contracted second marriage. After death of their father, their paternal uncle applied for their custody which was granted. Petitioner's appeal was dismissed. Constitutional petition. Welfare of minors. By now it is well settled that while disposing of applications under section 17 and 25 of Guardian and Wards Act, supreme consideration should be welfare of minors, coupled with their own wishes* Petitioner is undoubtedly step mother of female minors, but they are living with her for last more than 8 years, when their real mother expired away. All minors were examined thrice by trial and appellate court, who on every occasion, insisted to stay with their step-mother, instead of preferring to live with their real uncle (Respondent) It is noteworthy that in his statement, he has given his age to be of 90 years. Moreover, minors have develop intimacy with petitioner (step mother) and even otherwise, being female minors, it is necessary that they should stay with female instead of male. Findings of Courts below are not based on correct application of law, as well as appreciation of evidence on record. P.L.J.1998 Qta. 137 = 1998 MLD 1697.

Minors remaining in custody of their step-mother after death of their real mother with whom their father contracted second marriage. After death of their father, their paternal uncle applied for their custody which was granted. Petitioner's appeal was dismissed. Constitutional petition. Welfare of minors. By now it is well settled that while disposing of applications under section 17 and 25 of Guardian and Wards Act, supreme consideration should be welfare of minors, coupled with their own wishes* Petitioner is undoubtedly step mother of female minors, but they are living with her for last more than 8 years, when their real mother expired away. All minors were examined thrice by trial and appellate court, who on every occasion, insisted to stay with their step-mother, instead of preferring to live with their real uncle (Respondent) It is noteworthy that in his statement, he has given his age to be of 90 years. Moreover, minors have develop intimacy with petitioner (step mother) and even otherwise, being female minors, it is necessary that they should stay with female instead of male. Findings of Courts below are not based on correct application of law, as well as appreciation of evidence on record. P.L.J.1998 Qta. 137 = 1998 MLD 1697.

Custody of minor male child. It is to be weighed whether, it is in the welfare of minor to face step mother or remain with his real mother and face step-father. Minor is deeply attached to his real mother and also expressed attachment for his step father. Minor is of age where he can express an intelligent preference and his preference has to be taken into consideration while deciding where welfare of minor lies. It would be harsh and unjust to minor to deprive him of his mother's company. Judgment of Respondent No. 3 does not suffer from any legal infirmity and accordingly maintained. However, petitioner was allowed to visit minor through Principal of his school once a month. P.L.J.1996 Lah. 407.

Custody of minor -Welfare of minor, a prime consideration and basic criterion - For deciding the question and other issues relating thereto, welfare of minor is the paramount consideration for Guardian Court - Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court has to record a definite finding on the point before passing any order in the matter . PLD 2001 Kar. 371

Provisions of S.5, West Pakistan Family Courts Act, 1964, provide that in all matters mentioned in the Sched., Family Court shall have the exclusive jurisdiction--Custody of children having been specifically mentioned at Item No.5 of the Schedule, such dispute was to be tried and decided by the Family Court. 1999 C L C 1623

Suit for custody of minor must be instituted in Court of District Judge who can transfer case to an Additional District Judge or Civil Judge having jurisdiction under r. 5, West Pakistan Family Courts Rules, Application for custody of minor entertained directly by Family Court/Civil Judge and order passed thereon--Order, held, without lawful authority--Suit filed under S. 25 of Guardians and Wards Act, 1890 deemed to have been presented before District Judge for deciding question of custody of minors in accordance with law1985 C L C 1343 P L D 1969 Lah. 834 and P L D 1972 Kar. 410 ref.

Dispute relating to custody of minors. Respondent has no woman in his house who can look after children if given to his custody. Respondent claimed that he has a sister in his house who could look after children. Sister of Respondent could not be a substitute of mother and she could not provide love and affection to children which mother can, as lap of mother is God's own cradle for children. Mother was, thus, entitled to custody other minor children. P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.

Essentials. Welfare of minor is paramount consideration in determining custody of minor notwithstanding right of father to get custody after seven years of age of male minor child. Right of father to claim custody of minor son is not an absolute right in that, father may disentitle himself to custody on account of his conduct in the light and circumstances of each case. Evidence on record indicated that father who had sought custody of minor neglected him since separation of spouses inter se and had voluntarily left custody to petitioner/mother. Mother had brought him up and educated him till she had to opt for second marriage. Mother even after her second marriage had not been negligent in the care other minor son, having entrusted that duty to her mother and father, and minor is being properly educated till date in local school. Father had neglected the child during all that period till mother had applied for maintenance of child; it was only thereafter that father applied for custody of minor. Father having married again, his second wife was living in village, where no one would save minor from step-motherly treatment if custody of minor was allowed to remain with father. High Court' had thus, erred to interfere in concurrent findings of fact that welfare of minor- lay in leaving him to custody of mother and that too in exercise of constitutional Jurisdiction of High Court. Petition for leave to appeal was converted into appeal and while setting aside impugned order of High Court, orders of two Courts below that welfare of minor lies with mother and that she was entitled to retain his custody was restored. P.L.J.2000 SC 1094 = 2000 SCMR 838.

Expression "a Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890"-Does not mean that District Court is Family Court-Provision purposes to mean that Family Courts have to follow procedure laid down in Guardians and Wards Act like a District Court-Guardians and Wards Act (VIII of 1890), S. 10.-P L D 1968 Kar.650

Family Court dealing with applications for custody of minor-Word "procedure" in S. 25Remedy by way of "revision" cannot be equated with "appeal" or "procedure"-Distinction between appeal and revision and connotation of word "procedure" - Case-law discussed - Revisional jurisdiction under S. 115, C. P. C. does not confer any substantive right-It's a matter between higher and lower Court and the right to move higher Court in revision is merely a privilege granted to party - Word "procedure" in S. 25 of Act XXXV of 1964 does not exclude an appeal from its ambit-All provisions of procedure given in Guardians and Wards Act will apply to cases of guardianship matters before a Family Court-Litigant can invoke provisions of S. 115.-P L D 1975 Lah. 334 P L D 1972 Kar. 410 dissented from. P L D 1971 Kar. 118; P L D 1969 Lah. 834; A I R 1931 Nag. 17; P L D 1960 Lah. 57; P L D 1967 Lah. 836; P L D 1963 S C 147; P L D 1964 S C 410; Blackstone on Elements of Law, 1889 Edn., p. 21; A I R 1950 S C 174; A I R 1951 S C 253 ; Salmond on Jurisprudence, 12th Edn., p. 461; P L D 1969 S C 187; P L D 1965 S C 681; P L D 1967 S C 259; A I R 1938 Mad. 688 and (1876) 1 Ch. D 48ref. Application wader S. 7, Guardians and Wards Act, filed before District Judge acting as Family Court under West Pakistan Family Courts Act, 1964--Appeal against order passed in, lies under provisions of S. 14 of Act XXXV of 1964 read with r. 22 of West Pakistan Family Courts Rules, 1965 and not under S. 47 of Act VIII of 1890-Period of limitation for appeal from order of Guardian Judge acting as Family Court under Family Courts Act--30 days and not 90 days. P L D 1973 Kar. 503 P L D 1969 Lah. 834; P L D 1972 Pesh. 1; P L D 1967 S C 402 and P L t) 1967 Lah. 977 ref.P L D 1972 Kar. 410 ref. Determination of place of ordinary residence of minor.

Where father of minor was permanent resident of place "K" and the mother was also resident of same place, it could not be said that minor was ordinarily residing at place "H" with his paternal grandfather. Trial Court had dismissed application filed by mother on point without affording opportunities to both parties to adduce evidence on point of ordinary residence of minor, trial Court should have decided question of Jurisdiction only, thereafter. Constitutional petition was dismissed and Trial Court was directed to decide question of ordinary residence of minor accordingly. P.L.J.1999 Kar. 699 = 1999 CLC 1137.

Appeal "Notwithstanding anything provided in any other law" in S. 14 and "notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act" occurring in S. 25-Whether in a guardianship proceeding, under Family Courts Act, 1964, an aggrieved litigant has the right of appeal and revision contained in Guardians and Wards Act, 1890-Word "procedure" in S. 25 of Act XXXV of 1964-Does not include "right of appeal"-Appeal against decree or decision of Family Court (under Guardians and Wards Act) when its Presiding Officer is not District Judge or a Judge of equivalent rank-Lies to District Court and not to High Court Guardians and Wards Act (VIII of 1890), Ss. 25 & 47-Civil Procedure Code (V of 1908), S. 115-[Muhammad Ismail v. Fazal Ahmad P L D 1969 Lah. 834 and Juma Khan v. Gul Feroshah P L D 1972 Pesb. 1 dissented from]. On the basis of section 25 of the West Pakistan Family Courts Act, 1964 it was argued that a litigant aggrieved by the order of a Family Court, in the guardianship matters, had the right of appeal and revision prescribed under the Guardians and Wards Act, 1890. On the other hand it was urged that the provisions for challenging .orders of the Family Court were exhaustively set out in section 14 of the West Pakistan Family Courts Act, 1964 which was an overriding section and that section 25 of the 1964Act merely attracted to the Family Court the procedure of the Guardians and Wards Act, 1890. The matter was referred to a Full Bench and the questions formulated for decision were:



(i) Whether in a decision by the Family Court, under the Guardians and Wards Act, where the Presiding Officer is not a District Judge or one of equivalent rank, does an appeal lie at all and if so to which forum?

(ii) Whether the Family Court under the West Pakistan Family Courts Act, 1964 is a Court under the supervisory jurisdiction of the High Court under section 115, C. P. C. 7 Held:



It is true that section 25 of the West Pakistan Family Courts Act, 1964 expressly refers to the Guardians and Wards Act, 1890, but it is significant that the opening words of section 14 of the Family Courts Act, 1964 read: "Notwithstanding anything provided in any other law for the time being in force." The clear effect of these words is to exclude any provisions of the Guardians and Wards Act which may be contrary to section 14. Even otherwise section 25 merely prescribes that a Family Court shall be deemed to be a District Court. But a deeming clause creates a legal fiction and has to be construed strictly. therefore as the Legislature has only enacted that the Family Court is deemed to be a District Court, it means that it Is not a District Court, but that merely for the purpose specified in the section it would have the it atus and powers of a District Court. Additionally the right of appeal against an order of a Court cannot possibly be described as the status and powers of that Court. There fore the deeming provision in section 25 of the said Act, cannot possibly lead to the conclusion that it confers on a litigant aggrieved by a judgment of a Family Court the rights of appeal and revision contained in the Guardians and Wards Act. Merely because a Family Court is deemed to be a District Court, an order passed by it cannot be treated as an order of the District Court nor does it become appeal able to High Court. Now, although section 25 is an overriding provision, it relates only to procedure. The view that procedure does not include a right of appeal "does not admit of doubt." It is now too late in the day even to argue that the word "procedure" can include the right of appeal, which is a substantive right. Aright of appeal is a creature of the statute, and as the language of section 14 of the Family Courts Act is plain beyond any doubt the Courts have to give effect to it. The meaning of the word "procedure" cannot be altered nor is it necessary to do so because there is no lacuna in section 14. As guardianship disputes fall under subsection (1) of the section, it is clear that the Legislature has conferred in plain and unambiguous language a right of appeal against every decree and decision of Family Court whoever be the presiding officer of that Court. In the result, Muhammad lvwail's case P L D 1969 Lab. 834 has not been correctly decided and should not be followed. An appeal against a decree or decision of a Family Court under the Guardians and Wards Act, when its presiding Judge is not a District Judge or a Judge of equivalent rank, therefore, lies to the District Court and not to the High Court. As section 17 of the Family Courts Act, 1964 has prescribed that the previsions of the Civil Procedure Code, except sections 10 and 11 shall not apply to Family Courts, the litigant cannot invoke section 115 of the Civil Procedure Code and a revision under section 115 is not maintainable. P L D 1972 Kar. 401 P L D 1969 Lab. 834; and P L D 1972 Pesh. 1 dissented from. P L D 1970 Kar. 33; P L D 1971 Kar. 118 ref. P L D 1969 S C 187; P L D 1967 S C 402 and P L D 1968 Lab. 987 distinguished.

Forum of appeal-- Section 5 of the West Pakistan Family Courts Act of 1964 confers exclusive jurisdiction on the Family Court to adjudicate upon matters specified in the Schedule of which item No. 5 refers to the custody of children. This provision has been made subject to the provisions contained in the Muslim Family Laws Ordinance of 1961 and the- Conciliation Courts Ordinance of 1961. Section 25 of the West Pakistan Family Courts Act, 1964 confers on the Family Court the status of a District Court for the purpose of Guardians and Wards Act and further provides that while dealing with these matters the same procedure as prescribed under the Guardians and Wards Act shall be followed. Section 47 of the Guardians and Wards Act catalogues orders made by a Court which are all appealable to the High Court, of which claw; (c) refers to an order made under section 25. The Family Court as constituted under the West Pakistan Family Courts Act of 1964 having exclusive jurisdiction to deal, inter alga, with custody of children is not a district Court in terms of the definition as laid down in section 4(4), Guardians and Wards Act and section 2(4), C. P. C. except that the deeming provision contained in section 25 of the West Pakistan Family Courts Act, 1964 has conferred that status on it while dealing with cases under the Guardians and Wards Act. Since under section 25 of the West Pakistan Family Courts Act, 1964 the Family Court has to be equated with a District Court for the purposes of cases under the Guardians and Wards Act, it appears that sub-clause (b) of subsection (1) of section 14 would be straightway excluded inasmuch as the order passed by the Family Court in a case of this kind would be only in its capacity as a District Court and no Court can hear an appeal against its own order or from that of a concurrent jurisdiction. Likewise, clause (a) would also be inapplicable inasmuch is it would be invoked only in a case where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and of the status of a District Judge or an Additional District Judge. It appears than where a Civil Judge, 1st Class, functions as a Family Court while dealing with a case relating to the custody or guardianship, of a minor, the rank and status of an Addl. District Judge must be conferred on him, by means of a notification in order to make his order appeal able under clause (a) of subsection (1) of section 14. The rider attached to the provision contained in section 14 opening with the expression "notwithstanding anything provided in any other law for the time being in force", makes it abundantly clear that all other provisions relating to appeals contained in other relevant laws, including those of section 47 of the Guardians and Wards Act would be excluded from operation. But this provision has been subjected to a further limitation by the words "and notwithstanding anything contained in this Act" as occurring in section 25 of the West Pakistan Family Courts Act, 1964. Ordinarily the word "procedure" connotes details of the mode of trial to be adopted in a particular Court and would not include the provisions relating to appeal, but in view of the expression "in dealing with the matters specified in that Act, follow the procedure prescribed in that Act" coupled with the inevitable consequence that the order in question would not be governed by any of the provisions contained in section 14 so as to make it appealable, it is clear that the only proper interpretation that can be placed on sections 14 and 25 of the Act read together is that for the purposes of appeal, against an order of the Administrative Civil Judge functioning as Family Court holding a party entitled to custody of minors, section 47 of the Guardians and Wards Act would be applicable and accordingly an appeal would be competent to the High Court. P L D 1969 Lah. 834 P L D 1967 S C 402 distinguished.

Guardian of person and property :-- Trial Court had declared mother of minors to be the guardian of their person and property. District Judge, however, declared minor's father to be the guardian of person and property of minors and directed that custody of minors be handed over to him. Petitioner (mother) had annexed detailed list of cases which .had been registered against respondent and in which he has been convicted also. No rebuttal was placed on record from respondent's side that he was not involved, convicted and as not under trial in cases detailed in the list. Respondent did not mention in Court his income or his source of income. Neither any document regarding ownership of property was produced nor any other document showing that he had been deriving any income from said property was produced nor any proof that he was working anywhere was produced before Court. Petitioner, however, has placed on record certified copies of certificates from various educational institutions that she had been serving in those schools as a teacher and that at present she was teaching FauJi Foundation School. Petitioner had also placed on record certificate of tuition fee of minor children being paid by petitioner as also certificate showing balance of specified amount in her account in Habib Bank Ltd.. In addition to salary she has been giving tuition to students and earning hand some amount. Minor children have been admitted in best available schools, they are getting proper education and being looked after properly. Respondent in his statement before Court had -admitted that petitioner was graduate and has been serving in FauJi Foundation School and that Children were also studying in that school. Welfare of children being of fundamental importance, preference should be given to their welfare. Respondent although is natural guardian of minors yet his right was subordinate to welfare of minors. Evidence on record would suggest that minors were being well-educated and looked after by petitioner mother who had been supporting them since their birth while respondent had not spent a penny on them. Nothing on record was brought to indicate that petitioner was a woman of bad character. On the contrary she was graduate and teacher in a school of good standard and leading respectable life, welfare of minors, therefore, lies with petitioner (mother) and she was, thus, entitled to their custody. P.L.J.2000 Pesh. 175 = PLD 200 Q Pesh. 23.

Guardian, appointment of-Court's powers and duties in appointment of guardian or custody of minors-In nature of parental jurisdiction-Main question to be considered by Court-Welfare of minor--Court could consider personal law of minor but paramount consideration minor's welfare and protection of his interests-No case under Guardians and Wards Act, 1890, regarding custody or guardianship of minor could be decided merely by consent of parties or on compromise-Pre-trial hearing to induce parties to effect a compromise on such matters not only unnecessary but even undesirable Mere technicalities of procedure-Cannot affect decision of Guardian Judge based on broad principles in interests of minor. P L D 1976 Kar.506

Hizanat of minor. It is true that having married a stranger a second time, mother losses hizanat, but it is not true that after loosing such hizanat minor reverts to father. Gurdian Judge still retains discretion to determine welfare of minor. Father after dissolution of marriage is employed in PIA and lives alone. He has no mother or other close relative where his minor daughter could be put up. Father has also married a second time. All children of second husband of minor's real mother are married, hence, it can be expected that minor daughter will have more and exclusive care of her real mother with whom she is living right from her birth i.e., 7 years. Minor would not be given beneficient treatment by step mother. P.L.J.1998 Lah. 1635 = PLD 1998 Lah. 67.

Whether personal law will override welfare of child which is question of fact and is of paramount consideration. 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 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. Guardian Judge has to see as to where welfare of child is paramount consideration while deciding about custody of child which deeply concerns character building and his future prospects. Both courts below have rightly determined that welfare of child demands .that be should be left in care and custody of his mother till be reaches age of discretion. Petition dismissed. P.L.J.1998 Lah. 884 = 1998 MLD 1003.

Respondent has no woman in his house who can look after children if given to his custody. Respondent claimed that he has a sister in his house who could look after children. Sister of Respondent could not be a substitute of mother and she could not provide love and affection to children which mother can, as lap of mother is God's own cradle for children. Mother was, thus, entitled to custody other minor children. P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.

Hizanat--right of—Contest between mother and grand-mother of minors—Mother was a natural guardian and had a right of 'Hizanat' vis-a-vis her minor daughters—Mother being an educated lady and teacher by profession who had not remarried could easily meet expenses of bringing up of her daughters, whereas grandmother had no such qualifications except love and affection for the daughters of her deceased son—No one could give love to children more than the mother—Contention that both sisters should be distributed between the two claimants was a mechanical approach—Separating two real sisters from each other would be too cruel—Both the minors had a right to share the joy of childhood, and it would be in their welfare, if they were brought up under same roof and were not deprived of their mutual love and affection. 2002 MLD 202

Interest of Minor. Rationale behind these sections is that interests of minor should not be Jeopardized. Impugned order has given unlimited power to guardians and has not attached any conditionality stipulated in statute. Impugned order set-aside. P.L.J.2000 Lah. 1667.

Interference in findings of facts,:-- Principal of law discussed by Honable S.C.in case of Mst. Mehmooda Begum vs. TaJ Din can be invoked, wherein it has been laid down that findings of facts recorded by Tribunal of special Jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there has been serious mis-reading or mis-appreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law. Both courts below have passed impugned Judgments without taking into consideration intelligent preference of minors, evidence on record, that petitioner can look after welfare of minors better than respondent No. 1, who being male member and of advance age, would not be in a position to look after female minor girls. P.L.J.1998 Qta. 137 = 1998 MLD 1697.

Interim custody of minor - Mother of minor died at the time of her (minor's) birth - Grandmother of the minor girl obtained her custody from her father through habeas petition - During proceedings before Guardian judge, matter was compromised and as per term of settlement, custody of minor had to be handed over to father on her attaining age of seven years - Father, later on contracted second marriage and had an issue from second wife - Deceased mother of minor was a serving lady - Share of minor in the amount left by her mother was deposited by father in his own account, which amount was recovered from him through decree of Court after issuing his warrant of arrest - During pendency of another suit for his appointment as guardian of person and property of minor, father made application for implementation of such compromise seeking custody of minor - Guardian judge allowed such application and directed grandmother to hand over custody of minor to her father - Grandmother remained unsuccessful before Appellate Court and High Court - Held, paramount consideration in such-like cases was welfare of minor - Initially parties had settled the dispute through compromise, but later on due to material change in circumstances, question of welfare of minor had again cropped up in a more serious manner than before - Since birth minor had remained with maternal grandmother and suddenly to ask her to live in different atmosphere would be, if not impossible, at least very difficult for her - S.C allowed the appeal, set aside impugned order and permitted the minor to remain with grandmother till petition pending before Guardian judge was finally decided on merits after recording evidence of the parties. PLD 2002 S.C 267

Jurisdiction-District Judge was not a Family Court competent to hear and adjudicate upon matter due to total lack of jurisdiction, therefore, irrespective of fact that impugned order was passed by District Judge, same was appealable under S. 14 of Family Courts Act 1964 and not under S. 47of Guardians and Wards Act 1890-Court of Civil Judge being Family Court would have jurisdiction in relation to guardianship matters and custody of children would be deemed to be principal Court of Civil jurisdiction of .District. PLD 2003 Quetta 44

Whether in presence of step mother minor will be brought up in a congenial atmosphere. This factor per se is no ground for refusing custody of minor to father if, he is otherwise found entitled to it. If some safeguards are provided S.C. is of the opinion that this factor by itself does not-deprive father from obtaining custody of his minor son. In absence of any adverse circumstance S.C. cannot presume that appellant/father will not look after or bring up minor with love and affection or due care. If any time some circumstances seriously prejudicial to interest and welfare of minor are brought on record duly supported by tangible evidence respondent shall be free to move Court of competent Jurisdiction afresh on basis of a new cause of action or grievance. Appellant shall make minor available to live with his mother (respondent) at least two days every week till he attains majority. P.L.J.1996 SC (AJK) 230 = 1996 CLC 1534.

Minor children. Custody, District Judge observed that minors having attained age of 7 years respondent (father) was entitled to their custody. District Judge has failed to consider that fundamental criteria for deciding application for appointment of guardian and restoration of custody, is welfare of minors and personal law is subordinate to it. Custody of minors allowed to appellant (mother) P.L.J.1994 AJK 33 = PLD 1994 AJ&K 1 = NLR 1994 Civil 331.

Minor daughter. Custody. Both courts below have merely focused attention primarily to fact that father had contracted second marriage and mother had not, but did not give due with to over-riding legal consideration of welfare of minor. Superiority of claims is relevant but deciding factor is always welfare of minor. Minor was being brought up by her paternal aunt and properly looked-after. Judgments of courts below are without lawful authority and of no legal effect. Petition accepted and custody of minor given to. petitioner (father) P.L.J.1994 Note 77 at p. 51.

Modification of order passed earlier on compromise by Guardian Court - Mother of the minors was given custody and periodical meetings between the father and the minors were agreed to by the parties - Mother of the minors raised serious and shameful allegations against the father which pertained to the period of meeting with the minors-Guardian Court declined to modify the order passed earlier without making any inquiry into the matter and said decision of the Guardian Court was upheld by the Appellate Court - Plea raised by the father was that the Constitutional petition was not filed with clean hands - Validity - Finding with regard to truthfulness or otherwise of the allegations levelled by the mother of the minors in her guardianship application was not recorded by the Court and unless the same was recorded it could not be held that the mother of the minors had not approached the High Court with clean hands or she was not entitled to equitable relief in the matter - Orders passed by the two Courts below were set aside by the High Court in circumstances, PLD 2001 Kar. 371 PLD 1967 SC 402; PLD 1970 Kar. 619; 1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC 14; 1989 MLD 3427; 1993 CLC 736 and PLD 1996 Kar. 174 ref. 1993 CLC 736; PLD 1996 Kar. 174; 1998 MLD 1271; 1996 CLC 1603; AIR 1936 Lah.1019; AIR 1930 Lah.250; AIR 1954 SC 82 and PLD 1963 Dacca 816 distinguished.

Modification or alteration of an earlier order - Guardian Court, power of - Scope - Order passed by Guardian Court in respect of custody of minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same, may not serve as such - It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order, and pass an appropriate order at-any subsequent stage to safeguard the interest and welfare of the minor - Order passed earlier by Guardian Court with regard to custody of minor cannot operate as a bar of Jurisdiction for Guardian Court for all time to come. PLD 2001 Kar. 371

Mother of the minors was given custody and periodical meetings between the father and the minors were agreed to by the parties—Mother of the minors raised serious and shameful allegations against the father which pertained to the period of meeting with the minors-Guardian Court declined to modify the order passed earlier without making any inquiry into the matter and said decision of the Guardian Court was upheld by the Appellate Court—Plea raised by the father was that the Constitutional petition was not filed with clean hands—Validity—Finding with regard to truthfulness or otherwise of the allegations levelled by the mother of the minors in her guardianship application was not recorded by the Court and unless the same was recorded it could not be held that the mother of the minors had not approached the High Court with clean hands or she was not entitled to equitable relief in the matter—Orders passed by the two Courts below were set aside by the High Court in circumstances, PLD 2001 Kar. 371 PLD 1967 SC 402; PLD 1970 Kar. 619; 1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC 14; 1989 MLD 3427; 1993 CLC 736 and PLD 1996 Kar. 174 ref. 1993 CLC 736; PLD 1996 Kar. 174; 1998 MLD 1271; 1996 CLC 1603; AIR 1936 Lah. 1019; AIR 1930 Lah. 250; AIR 1954 SC 82 and PLD 1963 Dacca 816 distinguished.

Mother leaving adultrous life & asking for forgiveness. Question of law and welfare of child. According, to Hassan Basri, right of mother custody does not stop if welfare of children is to remain in custody of mother. According to Kitab-al-Fiqah, Hizanat is lost when woman is adultrus, but if she has asked forgiveness, she will have right of custody. Both Courts below while non-suiting petitioner on ground that she was prostitute have ignored most material and important aspect of this case that Mst. "R" married "B" and she was constrained to file writ petition against her mother contending that "B" had tried to rescue her from her sinful life, therefore, finding of Courts below are unsustainable. It is also established from evidence that minors were being maintained and educated by their mother and their educational certificate show that they were showing good results in institution. After marriage with "B" and after divorce with "S" and eventually she has married persons"" and according to her statement now she has offered her forgiveness from sinful life to God Almighty and she is never looking back to her past life and leading decent and respectful life, her children are being educated in good Institutions and they are enJoying fatherly love and affection from her husband. Courts below while nonSuiting Mst. "R" was not. Justified as "B" was conscious about after effects of his marriage with Mst. "R". He being man could have pulled her out of sinful life giving her all protection and decencies of matrimonial life and providing his children healthy atmosphere quite aware from social set up. He is most un-deserving person to be wali of minors and other relatives also stand disqualified to obtain custody of minors. Judgments and decree of both Courts below set aside minors shall remain in custody, direct supervision and control of mother as before. P.L.J.2000 Lah. 2419 = 2000 MLD 1967.

Custody of minor (female suckling child) Father of minor was away to United States. In such a situation, mother was most suitable and appropriate guardian of female suckling child. Mere fact that father returned to Pakistan with intention to reside here permanently would not nullify impugned order. It shall, however, be open to father to prove during trial of petition under Section 25 0f Guardians and Wards Act, that he intends to' reside in Pakistan permanently and that welfare of minor would be promoted if her custody is allowed to him. No good ground to interfere with impugned orders. P.L.J.1998 Lah. 1671 = 1999 MLD 943.

Grandmother agreed to hand over custody of minor to father on her attaining age of seven years - Father thereafter contracted second marriage, who, had an issue from second wife - Father's application for custody of minor by implementing such compromise was accepted by Guardian judge, which order was upheld by Appellate Court and High Court - S.C granted leave to appeal to consider, whether in such circumstances, irrespective of settlement between the parties. Guardian judge was not bound under law to decide question of custody of minor keeping in view her welfare. PLD 2002 S.C 267

Mother was a prostitute. All Courts below found father to be entitled to custody of minors. Validity. Mother leaving adultrous life & asking for forgiveness. Whether right of Hizanat lost. Question of law and welfare of child. According, to Hassan Basri, right of mother custody does not stop if welfare of children is to remain in custody of mother. According to Kitab-al-Fiqah, Hizanat is lost when woman is adultrus, but if she has asked forgiveness, she will have right of custody. Both Courts below while nonsuiting petitioner on ground that she was prostitute have ignored most material and important aspect of this case that Mst. "R" married "B" and she was constrained to file writ petition against her mother contending that "B" had tried to rescue her from her sinful life, therefore, finding of Courts below are unsustainable. It is also established from evidence that minors were being maintained and educated by their mother and their educational certificate show that they were showing good results in institution. After marriage with "B" and after divorce with "S" and eventually she has married persons"" and according to her statement now she has offered her forgiveness from sinful life to God Almighty and she is never looking back to her past life and leading decent and respectful life, her children are being educated in good Institutions and they are enJoying fatherly love and affection from her husband. Courts below while nonSuiting Mst. "R" was not. Justified as "B" was conscious about after effects of his marriage with Mst. "R". He being man could have pulled her out of sinful life giving her all protection and decencies of matrimonial life and providing his children healthy atmosphere quite aware from social set up. He is most un-deserving person to be wali of minors and other relatives also stand disqualified to obtain custody of minors. Judgments and decree of both Courts below set aside minors shall remain in custody, direct supervision and control of mother as before. P.L.J.2000 Lah. 2419 = 2000 MLD 1967.

Paramount consideration. Status of respondent (Father) Father is also better as compared to petitioner-(mother) He is senior officer of Federal Govt. presently serving as Asstt. Collector of Central Excise and Sales Tax, Rawalpindi and he can easily bear expenses of schooling, boarding and lodging of minors at said leading institution of country and their better bringing up as compared to petitioner, who is statedly working as Teacher in some private institution. Transferring custody of minors at this stage will definitely effect their studies and it will.also cause set aback to them if they are shifted from Murree to Lah.Welfare of minors is of paramount importance and lies in keeping all three minors in present institution at Murree where they are studying satisfactorily and getting positions in their respective classes examination/Test. Impugned orders are based on valid reasons calling for no interference in constitutional petition. Findings of both courts below are supported by evidence on record and no illegality has been pointed out in impugned orders. Petition without merit accordingly dismissed. P.L.J.1996 Lah. 577 = 1996 CLC 1603.

Whether living apart of minors in different environments is in their interest. Family is only Juncture where brothers and sisters live together under their parents and enjoy natural harmonious affection and love and share their small secrets of happiness. It is not in their interest to live apart from each other in different environments, under disputes and hatred which usually arise from result of broken homes. P.L.J.1996 Lah. 571 = 1997 MLD 520.

Parties, imp-leading of -Wife on being divorced by husband applying to Family, Court for custody of her minor sons living with father-Husband s 'attendance before Family Court not secured--Petitioner (uncle of minors) applying for being impleaded as a party to proceeding--Parents of minors being alive and minors not in petitioner’s custody. Family Court, held, rightly rejected petitioner’s prayer --No question of law, far less of any public importance, being involved, petition dismissed. 1976 S C M R 261

Poverty of mother :-- Mother seems firm and resolute to dedicate all her life to bring up her children and facing hard challenges of life for sake of her children and does not intend to marry in future. On the other hand, father who has remarried with a stranger lady is advocating cause of one of his relative to keep up custody of minors. Mere arguments that mother has no source of income cannot deprive her from custody of minor. Father is under duty of Law to maintain his children and enable them for better education, better future and good.health. P.L.J.1996 Lah. 571 = 1997 MLD 520.

Powers of judge, Family Court to regulate its own proceedings, where circumstances so demand, in order to prevent course of justice being deflected from its true path—PLD 2003 Pesh. 63

Principle of preference of either parents. Whether splitting -up brothers and sisters desirable. Courts below have taken into consideration admitted fact that all three brothers are studying in Lawrence College Ghora Gali, Murree and are Studying in College Hostel. They are, therefore, enjoying company of each other which will promote their brotherly feelings interse and elder can look after youngsters. Provision of S. 17 of Guardian and Wards Act was followed by both Courts below which are perfectly in accordance with spirit of law. Welfare of minors lay in their remaining in same institution. P.L.J.1996 Lah. 577 = 1996 CLC 1603.

Principles – Paramount consideration by the courts must be given to the welfare of minors. 2004 C L C 228

Senior Civil Judge (Judge Family Court) hearing and trying suit under S. 25, Guardians and Wards Act, 1890 Procedure adopted would be one under Guardians and Wards Act-Order making or refusing to make order for return of a ward to custody of his guardian-Appeal able to High Court under S. 47(c), Guardians and Wards Act, 1890. Senior Civil Judge while hearing and trying suit under S. 25, Guardians and Wards Act, 1890 description himself as Senior Civil Judge and not as Judge Family Court-Mis-description or non-description, held, did not affect his jurisdiction. P L D 1972 Pesh. 1-P L D 1967 Lah. 977 and P L D 1969 Lah. 834 ref.

Revision petition--Petitioner, despite a period of more than two months having elapsed ever since, had not submitted to the direction contained in the appellate order-Petitioner, apart from the fact that he had thereby exposed himself to the liability of being proceeded against for disobedience of a lawful order passed by the Appellate Court had also rendered himself disentitled to the exercise of discretion in his favour by a Court of law in circumstances. Revision is not maintainable against order of the Family Court. 1988 C L C 665 P L D 1971 Lah. 875, P L D 1972 Kar. 410; P L D 1981 SC 454 and P L D 1986 SC 14 ref.

Revisional jurisdiction of High Court against finding of guardianship cases--No revisional jurisdiction available to be exercised by High Court against the judgments passed by the District Judges whether in the appellate or original jurisdiction in guardianship cases or cases under Family Courts Act.-1988 C L C 1 P L D 1971 Lah. 875; P L D 1972 Kar. 410; P L D 1986 SC 14 and P L D 1981 SC.454 rel.

Scope - Guardian Court, to ensure and safeguard the interest and welfare of the minor, can grant any relief while deciding guardianship application Substance and not the form of application was to be examined even if Court was found lacking the authority to grant relief in strict terms as prayed in the application, Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

Where application under S.25 of Guardians and Wards Act, 1890, is brought before the Family Court, the Court in dealing with the matter has to follow the procedure prescribed in Guardians and Wards Act, 1890. 2001 S C M R 2000

Section 25, held, prescribes procedure of Guardians and Wards Act, 1890 to be followed by Guardian Judge and not procedure contained in such Act-Mode of trial prescribed in Act XXXV of 1964-Contains sweeping departures from mode of trial in suits under Civil Procedure Code, 1908-Provisions of Act XXXV of 1964 regulating trial of guardianship cases-To be followed by Family Courts-Obligation imposed by S. 25 of Act XXXV of 1964 to follow procedure prescribed in Guardians and Wards Act, 1890-An obligation imposed on Courts and not regulative of rights of parties after Family Courts became functus officio.-P L D 1981 S C454

Temporary custody. Beford execution of order of temporary custody of minor, mother of minor died and without passing any order in writing trial Court directed that her custody be given to her maternal grand mother. Now in presence of father, custody of minor could not be ordered to be given to maternal grand mother. P.L.J.1999 Lah. 949.

Territorial jurisdiction, determination of-Provisions of West Pakistan Family Courts Act, 1964, has overriding effect and question of territorial jurisdiction is to be decided under its provisions and rules framed thereunder-Provisions of Guardians and Wards Act, 1890, has no relevancy in deciding territorial jurisdiction in the matter relating to custody of minor. Provisions of West Pakistan Family Courts Act, 1964, has the overriding effect insofar as the matters included in Sched.-Family Court was- the forum which has to be approached in respect of matters relating to custody of minor being one listed item' in the Sched attached to West Pakistan Family Courts Act, 1964. 2001 S C M R 2000-- PLD 1981 SC 454; PLD 1969 SC 187 and PLD 1986 SC 14 ref.

Transfer of cases.-Provisions of S. 25. Act XXXV of 1964 read with provisions of S. 9, Act VIII of 1890. held, do not enlarge scope of S. 25-A so as to enable High Court to transfer a case from one Court to another and confer jurisdictions against S. 9, Guardians and Wards Act, 1890. 1980 C L C 865-P L D 1971 Kar. 897 ; P L D 1970 Lah. 52 and P L D 1978 Lah. 518 distinguished.

Trial Court had declared mother of minors to be the guardian of their person and property. District Judge, however, declared minor's father to be the guardian of person and property of minors and directed that custody of minors be handed over to him. Validity. Petitioner (mother) had annexed detailed list of cases which .had been registered against respondent and in which he has been convicted also. No rebuttal was placed on record from respondent's side that he was not involved, convicted and as not under trial in cases detailed in the list. Respondent did not mention in Court his income or his source of income. Neither any document regarding ownership of property was produced nor any other document showing that he had been deriving any income from said property was produced nor any proof that he was working anywhere was produced before Court. Petitioner, however, has placed on record certified copies of certificates from various educational institutions that she had been serving in those schools as a teacher and that at present she was teaching Fauji Foundation School. Petitioner had also placed on record certificate of tuition fee of minor children being paid by petitioner as also certificate showing balance of specified amount in her account in Habib Bank Ltd.. In addition to salary she has been giving tuition to students and earning hand some amount. Minor children have been admitted in best available schools, they are getting proper education and being looked after properly. Respondent in his statement before Court had -admitted that petitioner was graduate and has been serving in FauJi Foundation School and that Children were also studying in that school. Welfare of children being of fundamental importance, preference should be given to their welfare. Respondent although is natural guardian of minors yet his right was subordinate to welfare of minors. Evidence on record would suggest that minors were being well-educated and looked after by petitioner mother who had been supporting them since their birth while respondent had not spent a penny on them. Nothing on record was brought to indicate that petitioner was a woman of bad character. On the contrary she was graduate and teacher in a school of good standard and leading respectable life, welfare of minors, therefore, lies with petitioner (mother) and she was, thus, entitled to their custody. P.L.J.2000 Pesh. 175 = PLD 200 Q Pesh. 23.

Welfare of minor, a prime consideration and basic criterion - For deciding the question and other issues relating thereto, welfare of minor is the paramount consideration for Guardian Court - Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court has to record a definite finding on the point before passing any order in the matter PLD 2001 Kar. 371

District Judge observed that minors having attained age of 7 years respondent (father) was entitled to their custody. District Judge has failed to consider that fundamental criteria for deciding application for appointment of guardian and restoration of custody, is welfare of minors and personal law is subordinate to it. Custody of minors allowed to appellant (mother) P.L.J.1994 AJK 33 = PLD 1994 AJ&K 1 = NLR 1994 Civil 331.

There is no substitute for a mother especially when father has re-married and no step mother can give affection and love* which real mother can give to her children. Respondent (mother of children) seems quite determined, resolute and firm in her decision to bring up children even through hard work. She was evenready to forgo her right .of claiming maintenance of minors. She does not intend to marry in future, whereas father has remarried with a stranger lady. Under such a situation scales of Justice tilt in favour of mother. Nature has made a woman most adorable person on globe as "a mother". Mother and child enJoy natural sense of safety and protection. It is not in the interest and welfare of minors to be separated from each other devoid of love and affection which they enJoy while living together. No infirmity in Judgment of lower Appellate Court. P.L.J.1996 Lah. 813 = 1997 MLD 520.

Whether in exercise of Constitutional Jurisdiction, interference in findings of facts, can be made by High Court. Principal of law discussed by Hon-able S.C. in case of Mst. Mehmooda Begum vs. TaJ Din can be invoked, wherein it has been laid down that findings of facts recorded by Tribunal of special Jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there has been serious mis-reading or mis-appreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law. Both courts below have passed impugned Judgments without taking into consideration intelligent preference of minors, evidence on record, that petitioner can look after welfare of minors better than respondent No. 1, who being male member and of advance age, would not be in a position to look after female minor girls. P.L.J.1998 Qta. 137 = 1998 MLD 1697.

Whether District Court was competent to hear appeal against order of Family Court. Application for custody of minor filed u/S. 25 of Guardian and Wards Act, 1890 had been challenged on ground that application having been decided by Family Court in capacity of District Court, appeal against order of Family Court should have been field before High Court and not before District Court. Validity. Provisions of S. 14(1), West Pakistan Family Courts Act, 1964 had overriding effect over provisions of Guardian and Wards Act, 1890. Provisions of S. 47(1)(c) of Guardian and Ward Act, 1890, no doubt, had provided that appeal against order passed under S. 25 of Guardian and Wards Act, 1890 lay to High Court, but S. 14(l)of West Pakistan Family Courts Act, 1964 which started with words "notwithstanding anything provided in any other law for time being in force", had provided that Judgment and decree passed in Family Court, would be appealable to District Court if such Judgment and decree were not passed by District Judge or additional District Judge. Application under S. 25 of Guardian and Wards Act, 1890, having been decided by Civil Judge as Family Court not by District Judge or Addl. District Judge as Family Court appeal certainly would lie before District Court under S. 14(l)of Family Courts Act, 1964 which had overriding effect due to non obstante clause over provisions of Guardians and Wards Act, 1890. P.L.J.1999 Qta. 299 = PLD 1999 Qta. 29.

Whether mother has preferential right of Hizanat. It is admitted fact that there is no, substitute for mother especially when father has re-married and no step mother can give affection and love which real mother can give to her children. Respondent seems quite determined, resolute and firm in her decision to bring up children even through hard work and give them proper education,, care, love and affection and she was ever ready to forego her right of claiming maintenance of minors. Mother and child enjoying natural sense of safety and protection and understanding and this sense which normally prevails between this relationship and keep one day old child quite safe, by side of a mother sound asleep. Custody of mother is taken away only where strong grounds exist otherwise. P.L.J.1996 Lah. 571 = 1997 MLD 520.

Mother of minors, having contracted second marriage with person not related to minors within prohibited degrees has lost her right of Hizanat. Petition dismissed. P.L.J.1998 Lah. 146 = 1998 CLC 846.

Mother of minors, having contracted second marriage with person not related to minors within prohibited degrees has lost her right of Hizanat. Petition dismissed. P.L.J.1998 Lah. 146 = 1998 CLC 846.

Word "Procedure"-Meaning-Intention of Legislature would be defeated if ordinary meanings of word "procedure" are enlarged so as to include `provisions relating to appeal-View in Parveen v. Muhammad Ashar P L D 1975 Lab. 334, held, not a valid view.- P L D 1984 Lah. 332 P L D 1981 S C 454 fol.

Writ against interim Order :-- During appeal an application to produce additional evidence was filed which was dismissed. Writ against. In a writ petition, no interference is called for, unless it can be shown that order passed by lower Court suffered from some Jurisdictional defect. Evidence brought by parties on record was sufficient enough to enable lower court to decide fate of application. Evidence sought to be produced was admittedly an additional evidence which cannot be produced as a matter of right. Both parties had already executed their rights to produce their respective evidence. If the Court feels in-capacitated for lack of sufficient evidence to enable it to effectually dispose of controversy before it, it can permit any of parties to produce additional evidence, whereas in present case it is petitioner who is insisting to produce additional evidence. Npt being requirement of court,. additional evidence cannot be allowed. Appellate court has committed no illegality by refusing application. P.L.J.1999 Lah. 938.

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