2009 PLP 1106 (YLR)

S. ALI HASSAN RIZVI, J.

Instant writ petition is filed against the concurrent order of learned lower Courts dated 17-7-2007 and 20-3-2008.

2. Brief facts of the case are that the petitioner is a paternal grandmother and her son Muhammad Illyas entered into marriage with respondents No.1. During the marriage, out of their wedlock, one Hina Shahzadi minor was born on 11-6-1995. Son of the petitioner was murdered and after this, the respondents No.1 contracted second marriage on 9-8-2002. The minor Hina Shahzadi also is residing with her mother/respondent No.1. It was alleged in the application before the learned Guardian Judge that second husband of respondent No.1 was stranger one. Moreover, the atmosphere of the house of respondent was not' congenial for the minor to give her proper care and education whereas petitioner is a natural guardian. The custody of the minor was prayed for as her welfare lies in her favour. Learned Guardian Judge according to the pleading of the parties, framed issues and recorded the evidence. It has been held by the learned Guardian Judge that the petitioner is a old lady of about 75 years, weak and infirm one, having no independent source of income whereas the second husband of respondent No.1 is residing abroad and the minor is getting proper education while residing with her mother. Also observed that the petitioner despite a decree of maintenance allowance of the minor failed to provide the same. The application was dismissed by the learned Guardian Judge whereupon the petitioner filed an appeal which also was dismissed by the learned Additional District Judge by observing that the petitioner has failed to provide maintenance allowance for the last 8-years. Minor needs proper care, love and affection of the mother. Hence, this writ petition.

3. Argued by learned counsel for the petitioner that respondent has entered into second marriage. Now the minor is with stranger and mother has lost the right of custody. The learned lower Courts have failed to decide the matter in the light of Muhammad Law section

354. The second husband of respondent No.1 namely Imtiaz Ahmad has many grown up children while the minor is also of the age of puberty and if she continues to reside with mother, her modesty would be at stake. Thereafter, the petitioner in the circumstances is better guardian to look after the minor hence the learned lower Courts have not even considered the welfare of the minor. The petitioner was not bound to provide maintenance allowance as the decree earlier passed in favour of the minor was against her husband (grandfather) who has expired.

4. Conversely, argued by learned counsel that the petitioner has failed to provide maintenance allowance to the minor for the last 8-years despite a decree of the Court the petitioner as P.W.1 had concerned that she is a lady of about 80-years having no source of income. Thereafter, both the Courts rightly passed the impugned orders.

5. Heard.

6. The petitioner is an old lady of 80 years having no source of income and cannot move without support of others. She is residing in a common house along with her some and large number of family. The minor female child is of about 13 years. Earlier a decree for maintenance about 8 years back was passed against the husband of the petitioner. The husband of the petitioner (grandfather) had not provided maintenance and also not petitioner or any of her son never provided maintenance to the minor. The conduct of the petitioner towards the welfare of the minor cannot be ignored. There is no evidence and material to allege that the atmosphere in the house of mother/respondent No.1 is not conducive for minor. The minor in Court also has demonstrated her love, affection and attachment with mother as she is residing with her throughout. Although the Court of competent jurisdiction may deprive the mother of the custody, if she has married to a stranger despite that Court considered that the custody with the mother is in the interest of the minor which was of prime consideration while the petitioner who desires the custody by her act and conduct could be denied as it may put at stake the future of the minor. In the circumstances, choice and preference of the minor is also to be given due wattage. In view of the situation, the learned lower Courts both have rightly dismissed her petitions. Dismissed accordingly. H.B.T./B-3/L Petition dismissed.