1984 PLP 903 (CLC)

(a) Guardians and Wards Act (VIII of 1890)‑

‑‑Ss. 12 & 25‑Provisional Constitution Order(1 of 1981), Art. 9 Interim custody of minor girl‑Father natural guardian of minor after death of mother‑Quite fit to perform his duty and to look after his affairs‑Allegations about mental ailment of father refuted by doctor‑Paternal grand‑mother of minor girl also alive and living with him in his house who can look after minor very well whereas maternal grand‑father aged person whose wife dead and no close rela tion of minor living in his house‑Welfare of minor, held, rests in restoration of her interim custody to her father. (b) Provisional Constitution Order (1 of 1981)‑ Art. 9‑Guardians and Wards Act (VIII of 1890), Ss. 12 & 25 Constitutional petition‑Orders of Guardian Judge passed during pendency of constitutional petition‑Non‑compliance of orders, held, has no bearing on petition and recourse can be had to Guardian Judge and not to High Court. JUDGMENT This Constitutional Petition assails the orders, dated 11th March, 1982 and 5th July, 1982 passed respectively by the learned Guardian Judge, Lahore and the learned Additional District Judge, Lahore.

2. Syed Izhar Hussain Rizvi, respondent No. 1, filed a petition under section 25 of the Guardians and Wards Act for the restoration of custody of his minor daughter Mst. Masooma Rizvi, aged 4/5 years against his father- in‑law and brother‑in‑law i. e. the petitioners. Alongwith the petition under section 25 of the Guardians and Wards Act. Syed Izbar Hussain Rizvi, also filed an application under section 12 of the said Act, for the grant of interim custody of the minor, Mst. Masooma Rizvi.

3. The application for interim custody wag resisted by the petitioners but the learned Guardian Judge vide his impugned order dated 11th March, 1982 directed that the custody of the minor be restored to her father Syed Izhar Hussain Rizvi during the pendency of the main petition under section 25 ibid. The appeal taken by the petitioners before the learned Additional District Judge also failed and was dismissed on 5th July, 1982.

4. The aforesaid orders have been impugned through the instant Constitutional Petition on the ground that while passing the impugned orders, the learned Guardian Judge and the learned Additional District Judge did not take into consideration the paramount factor viz. the welfare of the minor inasmuch as respondent No. 1, the father of the minor, was suffering from a mental disease known as "Shizo Phrenia" which is not curable permanently and that in fact mother of the minor, namely, Mst.,Uzma daughter of petitioner No. l and sister of petitioners Nos. 2 and 3 died of serious burns on her body in Sir Ganga Ram Hospital, Lahore and it was suspected that respondent No. 1 was liable for the burns of his wife during the fit of his disease. It has also been urged on behalf of the petitioners that respondent No. 1 was once admitted in Mental Hospital on 30th January, 1975 and was discharged from there on 14th February, 1975. He was again admitted on 18th March, 1975 and discharged on 19th March, 1975. Yet again he was admitted in the Fountain House on 27th January, 1981 and he left the clinic on 1st February, 1981 against the medical advice.

5. Pursuant to the Court direction, the minor as well as respondent No. 1 were produced before the Court. I questioned .respondent No. I at some length. He replied each and every question sensibly. He is employed as demonstrator in Islamia College, Lahore. He has read upto B. Sc. and is drawing a basic salary of Rs. 1,

300. He has been declared medically fit by Dr. Muhammad Rashid, Professor of Psychiatry, King Edward Medical College, Lahore, on 20th February, 1982. It has been certi fied by the said doctor that in his opinion Syed Izhar Hussain Rizvi is fit to perform his duty and to look after his affairs It has been disclosed by respondent No. 1 that his mother is alive and lives with him in the same house. She can look after the minor very well. In the house of the petitioners, the grand‑mother of the minor i.e. the wife of petitioner No. 1 is already dead. His aged mother is, of course, alive. His other daughters are also married. The minor while replying to the Court questions disclosed that she was admitted in a Public School. She was very well‑dressed and appeared to be quite satisfied with her present environments.

6. In the above circumstances, it is to be determined as to whether' it is in the welfare of the minor to live with her maternal grand‑father and maternal uncles or to live with her own father and paternal grand mother. After the death of the minor's own mother, the father is the natural guardian of the minor. Ordinarily, she should live with her father. It is stated that the father is disqualified from having the custody of the minor child on account of his mental ailment. Regarding mental ailment it may be observed that Professor Dr. Muhammad Rashid has duly certified that respondent No. 1 was quite fit to perform his duty and to look after his affairs. He is admittedly performing his duties as demonstrator in a science subject in Islamia College, Lahore. The mother of respondent No. 1 is alive and living with him in his house. She can look after the minor very well. Conversely, petitioner No. 1, the maternal grand‑father of the mino is an aged person. His wife unfortunately, is already dead. . There is n close female relation of the minor living in his house.

7. In the light of the above observations it is concluded that the learned Guardian Judge and the learned Additional District Judge rightly concluded that the welfare of the minor rests in the restoration of the interim custody to her father viz, respondent No.

1. Even otherwise, the findings do not suffer from any jurisdictional defect.

8. It has, however, been urged during the course of arguments that pursuant to an application submitted by petitioner No. 1, the learned Guardian Judge directed respondent No. 1 to. appear before the Medical Superintendent, Government Mental Hospital, Lahore so that he could be examined by a medical board but he failed to appear.‑ It has been stated on behalf of respondent No. 1 that he in fact did appear before the Medical Superintendent, Government Hospital, Lahore, but the latter asked him to remain in the .hospital for about ten days which was not possible for him as he had not arranged his leave from the college. The orders passed by the learned Guardian Judge during the pendency of the present Constitutional Petition have little bearing on it and for their non compliance, recourse can be had to the Guardian Judge and not to this Court.

9. In the light of above conclusions, this Constitutional Petition is dismissed leaving the parties to bear their own costs. M. Y. H. Petition dismissed.