2010 PLP 1388 (MLD)

CH. MUHAMMAD TARIQ, J.

Brief facts of the case are that the petitioner Muhammad Jameel was married with respondent No.1 Azmat Naveed on 17-6-2001. Out of this wedlock, two females issues namely Farial Jameel and Feeza Jameel were born who are alive and in the custody of their real mother respondent No.1. Due to strained relations between the parties, the marriage was terminated through divorce. The petitioner filed a petition under section 25 of the Guardians and Wards Act before the learned Guardian Judge, Pasrur for the custody of the minors who vide his judgment and decree dated 25-10-2008 dismissed the petition for the custody of the minors. This order was assailed in appeal which met the same fate hence this writ petition.

2. The learned counsel for the petitioner contends that the impugned judgment as well as the judgment passed by the learned Guardian Judge is against the law and facts. Learned counsel further contends that welfare of the minors lies with the petitioner who is the real father of the minors. Learned Counsel further contends that atmosphere in the house of respondent No. 1 is not favourable to the minors. Therefore, this writ petition be allowed, the impugned judgment as well as the judgment passed by the learned Guardian Judge, Pasrur be set aside and the custody of the minors be handed over to him.

3. On the other hand, the learned counsel for the respondents contends that there are concurrent findings against the petitioner. The petitioner has contracted second marriage and has not paid any amount on account of maintenance to the minors despite the fact that a decree for the payment of maintenance has been passed against the petitioner, so the writ petition be dismissed.

4. Arguments heard. Record perused.

5. It is a case in which the paramount consideration is the welfare of the minors that whether it lies with the father or with the mother. Admittedly, the petitioner has contracted second marriage and it will not be in the welfare of the minors that their custody be taken from the real mother and handed over to the step-mother. Similarly, the petitioner has not denied the suit for recovery of maintenance filed against him which was decreed in favour of the minors and against the petitioner but despite the decree, the petitioner has not paid any amount to the minors on account of maintenance and now the respondents have filed an execution petition for the recovery of arrears as well as future maintenance. There is also concurrent findings of fact against the petitioner which could not be interfered by this court while exercising its constitutional jurisdiction.

6. In view of the above discussion, this writ petition is devoid of any merit, the same is dismissed. H.B.T./M-319/L Petition dismissed.