1985 PLP 1367 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This petition for leave to appeal concerns the dispute with regard to the guardianship of a minor boy, namely, Yawar Zulqarnain Ahmad, aged about 12 years. The petitioner, Mst. Talat Nasira, is the mother of the minor and on the other side of the dispute is Mst. Munawar Sultana, respondent No. 1, who is his paternal grand‑mother. The father of the minor was serving in the Armed Forces as a Major and had died in the Indo‑Pakistan War of 1971.

2. The first respondent moved an application for being appointed as guardian of the person and property of the minor before Mr. Abdul Hamid Khan Khattak, Guardian Judge, Lahore. In support of the application, the first respondent urged that the petitioner, the mother of the minor, has contracted another marriage with a stranger after the death of her husband, the father of the minor. Some additional grounds were also urged in support of the prayer for appointment as guardian, to the effect that the welfare of the minor did not lay in his being in the custody of his mother. The petitioner contested the application and repudiated the allegations made therein, making some counter‑allegations against respondent No. 1 of misconduct towards her and the minor which according to her compelled her to leave the house of her deceased husband. She also asserted that there was no apprehension of the minor's welfare being adversely affected on account of her second marriage, as her present husband treated the minor with love and affection as his own real son, particularly when there has been no issue from the petitioner's second wedlock.

3. Mst. Razia Begum, respondent No. 2, the maternal grandmother of the minor had also made an application for being appointed as the guardian of the person and property of the minor on similar grounds. The learned Guardian Judge, by his order, dated 14‑12‑1982, accepted the application of respondent No. 1 and appointed her as guardian of the person and property of the minor, whereas the application of Mst. Razia Begum was dismissed. He passed certain consequential orders, inter alia directing, in view of the welfare of the minor that the petitioner shall be allowed to see the minor in the school at least twice a month.

4. Being dissatisfied with this order the petitioner went up in appeal before the learned Additional District Judge, Lahore, who agreed with the findings of the Guardian Judge and dismissed her appeal by order, dated 30‑1‑1984. A revision application was filed by her to challenge these orders but a learned Judge of the Lahore High Court dismissed her revision application in limine by order, dated 28‑4‑1984 and hence the petitioner has come up for leave to appeal.

5. When this petition first came up for consideration this Court had ordered that the petitioner should produce the minor child in Court and in consequence of this order the minor has been produced before us. Upon our enquiry he stated categorically that he wishes to remain with his mother, who has been treating him well and with all the affection. It seems to us from the record that the Guardian Judge had also ascertained the wishes of the minor child and he had made a statement before him to the effect that he is a student of class‑VI in Elixir Academy, New Garden Town, Lahore, and is being brought up by his mother since his birth and that he desired to remain in her custody. He also stated that he regards his step‑father Shahid Ahmad to be his father.

6. From the perusal of the order of the Guardian Judge, it seems that the main consideration that prevailed with him was the factum of second marriage contracted by the petitioner with a stranger. Prima facie, however, the learned Judge did not give due regard to the wishes of the minor himself and seems to have disregarded the same on considerations, which, in our opinion, require re‑examination. It is aximatic that in the matter of appointment of a guardian the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a Court of law for the decision of such cases. It was stated before us that the minor is now thirteen years of age and he appeared to us to be capable of making an intelligent preference on the question in dispute. The other point that requires consideration is whether in case of a male child, marriage of his mother with a stranger would be a relevant consideration for depriving her of the custody of the minor.

7. We, therefore, allow this petition and grant leave to appeal.? Security for costs Rs.1,000.

8. The appeal shall be heard on the present record with liberty to the parties to file additional documents, if any, and shall be fixed within six months. In the meantime the impugned order shall stand suspended. M. I. ?????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.