P L D 1988 Lahore 290 (PLP)

The petitioner was married to the respondent on 10‑4‑1981, They were blessed with a daughter born on 25‑1‑1982. Differences led to litigation. The respondent filed suits for dissolution of marriage, for recovery of dower, for maintenance of miner daughter and a suit for recovery or dowry. She also filed a private complaint against the petitioner, During the' pendency of the litigation, a settlement was arrived at between the parties on 19‑7‑1984 whereunder the respondents withdrew all the suits and the complaint against the petitioner and the latter divorced the respondent. As regards the minor daughter. it was agreed that she will be with the father, the petitioner, and he shall be responsible for bringing her up. On the basis of the statements of the parties, the suit of the respondent dissolution of marriage was decreed on 25‑10‑

84. The other suits and the complaint failed in view of the compromise between the parties On 4‑7‑1985, the respondent‑mother filed an application under section 39 of the Guardians and Wards Act, 1890 for removal of the petitioner as a guardian read with section 25 of the said Act. The learned Guardian Judge dismissed the application vide order dated 23‑6‑

86. The respondent then filed an appeal which has been accepted by learned Additional District Judge, Lahore vide order dated 22‑9‑1987 whereby he has allowed the application of the respondent‑mother for custody of the minor baby girl. The father‑ petitioner has filed the afore-titled Constitutional petition.

2. Learned counsel for the parties have been heard at length and record perused. The little girl was also seen. Learned counsel for the petitioner contended that the custody of the minor had be given up by the respondent in favour of the petitioner by an agreement and on the basis thereof the suits inter parties were disposed of. . these circumstances, he submitted that no application under section 39 of the Guardians and Wards Act, 1890 was competent. He read Section 39 of the Guardians and Wards Act, 1890 which is to the following effect:‑ "Removal of guardian.‑‑ The Court may, on the application any person interested, or of its own motion, remove a guarded, appointed or declared by the Court, or a guardian appointed by or other instrument, for any of the following causes, namely:‑ (a) for abuse of his trust; (b) for continued failure to perform the duties of his trust; (c) for incapacity to perform the duties of his trust; (d) for ill‑treatment, or neglect to take proper care, of his ward (e) for contumacious disregard of any provision of his Act or any order of the Court; (f) for conviction of an offence implying, in the opinion of I Court, defect of character which unfits him to be the guardian of his ward; (g) for having an interest adverse to the faithful performance his duties; (h) for ceasing to reside within the local limits of the jurisdiction of Court; (i) in the case of a guardian of the property for bankruptcy insolvency; (j) by reason of the guardianship of the guardian ceasing or being liable to cease, under the law to which the minor is subject: Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed; (a) for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that person made and maintained the appointment in ignorance of the adverse interest; or (b) for the cause mentioned in clause (h) unless such guardian has taken up such a residence as in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian". To his credit, it may be stated that as a responsible and good counsel, he pointed out Bai Harkor v. Bai Shangar and another (ILR Vol. XVIII Bomb. 375) where the facts were that under an arbitration, a decree was passed and when an application was filed under Section 39 of the Guardians and Wards Act, 1890 a question arose whether the word "instrument, in section 39 of Act VIII of 1890 included a decree of a Subordinate Judge sitting as a Civil Court of original jurisdiction. It was held that "language of the section requires that the word "instrument" should be confined to Instruments ejusdem generis with a will, and that the decree, by which the first appointment of the guardian in this case must be regarded as having been made is, therefore, not an "instrument" within the contemplation of the section." In this view of the matter, the learned counsel did. It press the contention that the application was incompetent. It is admitted on all hands that the paramount consideration in deciding an application for custody is the welfare of the minor. Various authorities to that effect were cited. It is not necessary to recapitulate the same in extension as this is well established law that it is the well minor which is the determinative factor in deciding the custody of minor children.

3. The learned counsel for the petitioner of contended that the child was given in the custody of the petitioner father when she was of about 24 years, by the respondent‑mother and It is the petitioner and his family who are looking after the child. I have seen the child. She is a pretty little girl studying in a Kindergarten Class in an English Medium School. She is intelligent for her age. She seems to be looked after well. I have given very anxious consideration as to where her welfare lie‑including healthy emotional development; whether she be left with her father or she should be with her mother? The admitted facts are that after the dissolution of marriage on 19‑7‑84 and during the pendency of the application for custody filed on 4‑7‑85, the petitioner remarried a divorced lady with a small boy on 23‑3‑

86. She has borne two sons out to the petitioner sometime in January, 1987 and January. 1988. Learned counsel for the petitioner contended that the remarriage by the petitioner is no bar for his retaining the custody of his minor daughter from his first wife whom he has divorced i.e. the respondent No.l. He cited some authorities to that affect. Remarriage by itself may be no legal bar for having or retaining the custody as laid down in some of the authorities quoted by the learned counsel for the petitioner. The facts in the cases were different and it was held by the Courts that the welfare of the. minor lay being with the father notwithstanding that he had remarried. It depends on the circumstances of each case. In the case in hand, it has to be seen as to whether it is the welfare of the minor that she should be living with her father where there is a step‑mother who has a son from her first marriage and had given birth to two sons from her present marriage with the petitioner? Or she should be living with her natural mother, the respondent No.l.

4. Learned counsel for the respondent No.1 has referred to Tassadiq Hussain Shah v. Mst. Surraya Begum (1980 C L C 1802), a judgment by the Supreme Court of Azad Jammu and Kashmir, wherein it was observed in parts 16 as follows: ‑ "We cannot, for a moment, conceive that the step-mother will) be any substitute for the mother in the matter of rearing up the minor. We have no doubt it. our mind that mother's lap 'is God's own cradle' for a child and as between the father and the mother, other things being equal, a child in the circumstances of a given case should remain with the' mother. We are not prepared to say that the appellant is not a fit person to have the custody of the minor. Of 'course, when the mother is found to be leading a bad and immoral life, which is not the case here, the father is entitled to take the custody of the minor children". He also referred to Ghulamullan Memon v.. Mat. Rashid Begum (1983 S C M R 793) wherein the petitioner, a highly placed Officer well able to look after the minor girls was not given the custody as against the grand‑mother, the mother having died, as he had taken a second wife. It was observed in the last lines of last paragraph at page 795 that "Lastly, if the girls were to join the petitioner at' Islamabad, they will have to suffer the company of a step-mother in their father's house which human nature as it is, can be anything but congenial". Father was not given the custody of the minor girls because they were to live in the house where there was to be a step‑mother and their custody was given in the absence of the mother on account of demise, to the maternal grand‑mother. In the case in hand, the respondent No.1 is the real mother who has been giver custody. It seems to be in the overall welfare of the minor in the long run to be living with the natural mother, the respondent rather than with the petitioner where she will have to live with a step-mother who has a son from her first husband and also two sons from the present husband, the petitioner. The learned Additional District Judge in his appellate jurisdiction has held that it is for the welfare of the minor little girl to be with her mother, the respondent No.l. His order cannot be said to be without lawful authority and of no legal effect. However, the petitioner would have a right to see the child by mutual arrangement or through the aegis of the learned Guardian C Judge. Subject to this, no interference is called for in the impugned order of the learned Additional District Judge, Lahore dated 22‑9‑

87. The petition is, therefore, dismissed leaving the parties to bear their own costs. A.A./S.203/L Petition dismissed.