1984 PLP 345 (CLC)

‑‑ S. 25‑Custody of minor girl‑Contest between divorced mother and father of minor‑Father of minor girl aged more than ten years employed as personal servant with some Zamindar and no female relative living with him‑Living in a house where no grown up female relative was living not safe and convenient for a girl of such age‑Father also failing to satisfy decree for payment of mainte nance to minor child‑Mother of minor, on other hand, capable of looking after needs and welfare of her daughter‑No child born to minor's mother from her second husband love and affection which a mother can give to her child cannot be expected from father Welfare of minor, in circumstances of case, lies in living with her mother‑View of Guardian Judge and District Judge that mother, after contracting second marriage with a person not related to minor, rendered herself disqualified to retain custody of minor Held, erroneous and unsupportable‑Judgments of Courts below giving custody of minor girl to her father declared to be without lawful authority and of no legal effect‑Provisional Constitution Order (1 of 1981), Art.

9. Shagufta Bano v. Musarrat Hanif and others 1982 C L C 1821 ref. This constitutional petition assails the orders, dated 17th February, 1982 and 7th July, 1982 passed respectively by the learned Guardian Judge, Jhang and the learned Additional District Judge, Jhang.

2. Mst. Jannatan petitioner and Ahmad respondent No. 3 were married about 14/15 years back. During this wedlock Mst. Sakina, who is presently aged about 10/11 was born. In April, 1976 however, res pondent No. 3 divorced the petitioner while the minor continued living with the petitioner, her mother. In 1979, respondent No. 3 filed an application before the learned Guardian Judge, Jhang, under section 25 of the Guardian and Wards Act, for the restoration of the custody of the minor girl Mst. Sakina. He alleged that Mst. Jannatan, the petitioner herein, had no ostensible source of livelihood. She lives on beggary and, therefore, could not properly bring up and educate the minor. He urged that it was in the welfare of the minor that her custody be given to him (respondent No. 3).

3. This application was vehemently opposed by the petitioner. The learned Guardian Judge, after considering the parties evidence, came to the conclusion that since Mst. Jannatan has contracted remarriage with one Muhammad Aslam who was not related to the minor in any manner and, therefore, it was in the welfare of the minor that her custody was given to her father. He consequently vide his impugned order, dated 17th February, 1982 allowed the application of respondent No. 3 and directed that custody of the minor be restored to him.

4. The petitioner went in appeal before the learned District Judge but her appeal failed and the learned Additional District Judge vide his impugned judgment dated 7th July, 1982 dismissed the appeal leaving the parties to bear their own costs.

5. The impugned orders passed by the learned Guardian Judge and the learned Additional District Judge, have been mainly called into ques tion on the grounds that (a) the learned Additional District Judge lacked the jurisdiction when he passed the order dated 7th July, 1982 and (b) that both the Courts failed to take into consideration the para mount factor viz. the welfare of the minor.

6. So far as the first contention regarding lack of jurisdiction of the Court of Additional District Judge is concerned, it has been argued on behalf of the petitioner that respondent No. 3 had filed application under section 25 of the Guardian and Wards Act, in February, 1979 and, there fore, keeping that date in view the appeal was competent before the High Court and not before the District Court. This argument per se appears to be fallacious. The Guardian and Wards (Amendment) Ordinance, 1980 whereby jurisdiction to hear appeal against the orders passed by an Officer subordinate to District Court was conferred on the District Court came into force on 26th March, 19800. In the present case the learned Guardian Judge, Jhang, viz. an Officer subordinate to the District Court passed the order allowing application of respondent No. 3 on 17th Feb ruary, 1982, i.e. long after the coming into force of the Guardian and Wards (Amendment) Ordinance, 1980. In these circumstances, on 17th February, 1982 appeal was competent before the District Court and not before the High Court. It is interesting to note that as a matter of fact, the appeal before the District Court was filed by the petitioner herself and now she has raised the objection re : lack of jurisdiction. It is thus con cluded that the impugned order passed by the learned Additional District Judge does not suffer from lack of jurisdiction.

7. Regarding the question of welfare of minor, it may be observed that the learned Guardian Judge as also the learned Additional District Judge appear to have been mainly influenced by the fact that the peti tioner has since contracted re‑marriage with a person who was not related to the minor and thereby she has lost her right of Hizanat of her minor daughter. It has come on record that respondent No. 3, the father of the minor, is employed as personal servant of some Zamindar. There is no female relative like his mother or sister living with him. The minor is aged more than 10 years. It is not safe and convenient for a girl of the age to live in a house where no grown up close female relative is living. Her father who is a domestic servant of Zamindar is not supposed t live in the house for all times. Correspondingly the petitioner, the mother of `the minor, can look after the needs and welfare of her daughter. Admittedly, no child has born to the petitioner from her second husband namely Muhammad Aslam. In the circumstances, the love and affection which a mother can give to her child cannot be expected from a father. There is material on the record to suggest that the petitioner has arranged for the education of the minor while conversely the father has failed to satisfy the decree passed against him for the payment of maintenance to the minor child and instead has filed an application for obtaining the custody of the minor.

8. In the above circumstances, it is concluded that the welfare of the minor lies in living with her mother and the learned Guardian Judge and the Additional District Judge while arriving at an otherwise conclusion have misread the evidence. Their view that the mother after having con tracted second marriage with a person who is not related to the minor has rendered herself disqualified to retain the custody of the minor is erroneous and unsupportable. In Shagufta Bano v. Musarrat Hanif and others (1982 C L C 1821) it has been observed by this Court "The learned Guardian Judge as also the learned District Judge have worked under the erroneous impression that the petitioner by re marriage had lost right of custody of the minor and that respon dent No. 3 was the person entitled to his custody under Muslim law‑as already mentioned the sole consideration for keeping his custody is as to where his welfare lies love and affection which the mother can bestow upon the minor child is incomparable to the love and affection of respondents 3 and 4 it is in the interest of minor's welfare that he should continue to stay with the mother. In these circumstances, the findings of the learned Courts below to the contrary cannot be endorsed."

9. The upshot of the above discussion is that the welfare of Mst.. Sakina minor lies in living with her mother, and the findings to the cont rary recorded by the learned Courts below cannot be upheld. The Constitutional petition is accordingly allowed and the impugned judgments passed the learned Guardian Judge and the learned Additional District Judge are, therefore, declared to be without lawful authority and of no legal effect. Consequently, the petitioner is allowed to retain the custody of her minor daughter. The parties, however, are left to bear their own costs. S. Q. Petition allowed.