2002 PLP 202 (MLD)

3. During the pendency of the said application, Mst. Naseem Tariq, who was respondent in that case, filed an application under section 25 of the Guardians and Wards Act, 1890, seeking Hizanat of the minor daughters Mst. Saba Murtaza and Mst. Hina Murtaza. This application was filed on 4‑9‑2000. Another application under section 12 of the said Act was also filed by Mst. Naseem Tariq seeking temporary custody of her minor daughters.

4. The application filed by Mst. Zubaida Begum, petitioner, for her appointment as Guardian of the minors and the application filed by Mst. Naseem Tariq under section 25 of the Guardians and Wards Act, 1890, are still pending before the Guardian Judge. Meanwhile, the custody of Mst. Madrika Saba Murtaza was given back to Mst. Naseem Tariq, respondent No.3 in the present petition.

5. The application for ‑ custody of Hina Murtaza filed by Mst. Naseem Tariq was decided in her favour and against the petitioner by the Guardian Judge, Multan, vide his order, dated 13‑7‑2001 on the grounds that Mst. Naseem Tariq was mother of the minor and was natural guardian. She being an educated lady was a teacher by profession, therefore, had a sufficient source of income. While the petitioner grand‑mother has no such qualification, therefore, the Guardian Judge ordered the petitioner to give the minor in the custody of Mst. Naseem Tariq.

6. Feeling aggrieved, the petitioner challenged the order of the Guardian Judge before the Appellate Court, which came up for hearing before Mr. Bahadar Ali Khan, Additional District Judge, Multan, who dismissed the appeal of the petitioner in limine. After the dismissal of the appeal, the petitioner has filed the instant Constitutional petition.

7. The main arguments advanced by the learned counsel for the petitioner were that Hina Murtaza minor was not called in the Court and her consent/opinion was not sought by the Guardian Judge and that in fact Mst. Naseem Tariq, respondent, had left the minor Mst. Hina Murtaza with the petitioner when the minor was only three years old. He further argued that Mst. Madrika Saba Murtaza minor was living with Mst. Naseem Tariq, respondent, therefore, the custody of the other minor namely Mst. Rabika Hina Murtaza should be given to the petitioner Mst. Zubaida Begum, grand‑mother of the minors.

8. I have heard the learned counsel for the petitioner at length and gone through the orders passed by the learned Courts below and applied my mind to the facts of the case. Admittedly Mst. Naseem Tariq is the mother, who is an educated lady and is in service, therefore, she can easily meet the expenses of bringing up her daughters. She has also not remarried. Since father of the minors has died, therefore, she is a natural guardian and in any case has a right of `Hizanat' vis‑a‑vis her daughters.

9. On the other hand, the grand‑mother of the minors has no such qualifications except that she has love and affection for the daughter of her deceased son. Even on his score it can easily be said that no one can; give love to the children more than the mother.

10. The argument of the learned counsel that both the sisters should be distributed between the two claimants, seems to be a mechanical approach towards the problem. In fact it will be too cruel to separate two real sisters, who would live as good friends because there is only a difference of two years in their ages. It would be in the welfare of both the minors if they are brought up under the same roof and are not deprived of their mutual love and affection. In my opinion they have a right to share the joy of childhood.

11. During the arguments, the learned counsel for the petitioner relied upon the case of Haji Muhammad Shafi and another v. Mst. Maqbool Afza and others (1986 SCMR 1634).

12. I am afraid, the case cited by the learned counsel for the petitioner is not applicable in the circumstances of the case. As the perusal of the cited case shows that father of the minor was alive. Even otherwise the learned counsel for the petitioner could not point out that the findings of the Courts below were based on non‑consideration or misreading of the evidence or the orders were passed on erroneous presumption of facts.

13. In a nutshell, I find no merit in this petition, therefore, the same is dismissed in limine. S.A.K./M.A.K./Z‑61/K Petition dismissed