1991 PLP 1238 (CLC)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of an application under Section 25 of the Guardians and Wards Act riled by respondent No.1 against the petitioner seeking the restoration of the custody of Naeem Shahzad, a minor. The petitioner is the maternal grandmother while respondent No.1 is the father of the unfortunate minor whose mother is dead.

2. On 20th of January, 1988 respondent No.1 filed the application under section 25 of the Guardians and Wards Act, 1925 claiming the custody of the minor on the ground that, respondent No.1 was suffering from T.B. and it was for tile welfare of the minor that tlit;‑ minor should live with him. The application was resisted by the petitioner by filing a written statement in which it was asserted that respondent No.1 did not possess good moral character. The parties led their evidence in support of their respective contentions. Respondent No.1 examined Mst. Dalian his mother as A.W.1, Abdur Rehman as A.W.2 and appeared himself as A.W.3. In rebuttal the petitioner appeared as her own witness as R.W.1, Riaz Hussain was produced as R.W.2 and Muhammad Rafique as R.W. 3.

3. By means of his order dated 25th of October, 1989 the Guardian Judge held that respondent No.1 was not entitled to ‑tile custody of' the minor. He therefore, proceeded to dismiss the application. Being aggrieved respondent No.1 filed an appeal which was accepted by the Addl. District Judge, Jhang on 14th of March, 1990 who reversed the findings of the Guardian Judge and held that it was in the welfare of the minor that he should live with his father.

4. Mr. Naveed Shaharyar, the learned counsel for the petitioner, has contended that as the Guardian Judge had directed that the minor should continue living with his grandmother i.e. the petitioner till he attains the age of seven years, there was no occasion for the Addl. District Judge to have interfered with the order of the, Guardian Judge.

5. On the contrary Malik Talib Hussain Awan, Advocate for respondent No.1 has submitted that respondent No.1 being the father and natural guardian of his son, the minor was entitled to his custody in preference to the maternal grandmother i.e. the petitioner especially when no fault could be found with him. It was also contended that the petitioner having no source of income was living on Zakat and could not bring up the minor satisfactorily.

6. From the perusal of the judgment of the District Judge it is to be seen that the only ground oil which the petitioner was held disentitled to retain the custody of her minor grandson was that she has no means of livelihood. This ground by it self is not sufficient to deprive the petitioner, of her right of custody. A If any authority is needed reference may be made in Mst. Faroze Begum v. Lt. Col. Muhammad Hussain (1978 S C M R 229) and Talib Hussain v. Mst. Bashiran Bibi and 2 others (1985 C L C 592). Even otherwise under the law it is the duty of the father to maintain his minor children wherever they may be living if the petitioner has no source of livelihood, it was for‑the respondent to provide maintenance for the minor.

7. The argument of the learned counsel for the respondent that the respondent is the natural guardian, therefore, entitled to the custody of the minor is wholly misconceived as it overlooks the distinction between the right to custody and the guardianship. There can be no cavil that the father is the natural guardian of his children but he is not entitled to their custody as of right. Under the Personal Law there is a general presumption that the custody of the minors should remain with mother till they attain certain age. In the absence of mother, this vests in the maternal‑grandmother. The learned counsel for the petitioner is thus not correct in suggesting that under the personal law the father is entitled to the custody of the minor. Apart from holding that the petitioner has no source of income no other fault has been found with the petitioner it is also to be noted that it has been categorically asserted by the learned counsel for the petitioner that respondent No.1 has re‑married on 16th March, 1991, but the learned counsel for the respondents has no instructions in this behalf. For the reasons aforesaid this petition is accepted, the judgment of the Addl. District Judge 14‑3‑1990 is declared to be without lawful authority and of no legal effect with the result that the order of the Guardian Judge dated 25th of October, 1989 stands restored with no order as to costs. H.B.T./S‑914/L Petition accepted.