2006 PLP 493 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition challenged the appellate judgment/order ,dated 7-10-2005 to be declared illegal, void and of no legal consequence whereby custody of the minor daughter of the petitioner was ordered to be handed over to father (respondent No.2) by reversing the orders of the learned Guardian Judge dated 13-5-2005.

2. Succinctly, relevant facts are that respondent No.2 entered into a tie of marriage with the petitioner, which led to birth of a daughter Mst. Robina on 11-12-2001. Relations between spouses did not remain cordial and resulted in decree for dissolution of marriage on suit by the petitioner, vide judgment/decree dated 26-8-2002 maintenance allowance, was also awarded to the minor daughter of the petitioner at the rate of Rs.1,000 per month. Respondents Nos.2 and 3 filed an application under section 25 and Guardians and Wards Act, before the learned Judge Family Court, Mianwali averring that the petitioner has solemnized the second marriage with person within the prohibitory degree of the minor who is also sick and that petitioner did not permit their meetings with the minor.

3. The petitioner being respondent contested the custody application filed by respondents Nos.2 and 3 wherein she asserted that respondent No.2 cannot take better care of the minor on account of his heavy work in the Army where he is employed and respondent No.3 being of an old age with ill-health, is not in a position to look after the welfare of the minor. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Guradian Judge who was seized of the matter, after doing the needful dismissed the application of respondents Nos.2 and 3 vide his judgment and decree dated 13-5-2005.

4. Respondents Nos.2 and 3 aggrieved of the decision of the learned Gurdian Judge, filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and by reversing the order of the learned Guardian Judge, custody of the minor was ordered to be handed over to them. Petitioner, thereafter, filed instant constitutional petition wherein respondents in response to notice by this Court have appeared; and were represented through their counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undeniably, both the petitioner and respondent No.2 have entered into their respective second marriages. It is also not disputed that respondent No.2 is serving in Army as a Soldier where he has to perform full time duties. Respondent No.2 is also not permanently stationed at one place of his posting and constantly remains under transfer from one Cantonment to another. In absence of respondent No.2 his mother will look after the affairs of the minor who besides being of elderly age, is not keeping good health. As against this petitioner's second husband is real brother of her step-mother and in this manner is closely related to the minor besides being from the same brotherhood. Besides the lawful reasons which weighed with the learned Guardian Judge while refusing the custody of the minor to the respondents Nos.2 and 3, it is known to everybody that lap of real A mother is the best school for a growing child, and no one else can look after the welfare of the minor as compared to the woman who had given birth to the child. The minor at the present is said to be of four years age and is living since her birth with the petitioner and thus must have developed deep association/attachment with her. Snatching of her custody from her mother in such a tender age and entrustment to a step-mother though in the supervision of paternal grand-mother, could not be justified on the touchstone of any canon known for administration of justice.

6. Petitioner might have lost her right of "Hanazat" to retain custody of her minor daughter, on account of her second marriage but earlier to deprive her the supervision of her own blood, welfare of the B minor has to be looked into which certainly lies in keeping her in custody of the petitioner. Reference in this behalf can conveniently be made to the judgments in the cases of Mst. Firdous Iqbal v. Shifaat Ali and others (2000 SCMR 838), Syed Tahseen Riaz v. Dr. Farhana Shaheen and another (2003 YLR 1067), Muhammad Aslam v. Additional District Judge and others (2004 CLC 160) and Muhammad Nafeez Abbas v. The Guardian Judge Lahore and others (NLR 1994 Civil 4) and Mst Mst. Shaheen v. Jafar Khan and another (2000 CLC 1627).

7. Scan of evidence revealed that welfare of the minor was being best served while her living with mother petitioner, as compared to respondent No.2 who due to his service remains out of house and was not in a position to look after the affairs or well-being of the minor.

8. For all the reasons noted above, the impugned appellate judgment by respondent No.1 being contrary to law evidence on the file and opposed to the welfare of Mst. Robina Blbi, is declared to be void and non-existence in the eye of law being not sustainable. Instant petition is accordingly accepted and the appellate judgment/decree dated 7-10-2005 passed by the learned Additional District Judge Mianwali is adjudged as nullity with the result that judgment order dated 13-5-2005 by the learned Guardian Judge will stand revived. There will be no order as to costs. S.A.K./N-5/L????????????????????????????????????????????????????????????????????????????????????? Petition accepted.