2025 PLP 2669 (YLR)

Jawad hassan, J.

The Petitioner, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), has called in question the validity of the impugned judgment dated 27.09.2023 passed by the Additional District Judge, Chakwal.

2. The bone of the contentions raised by learned counsel for the Petitioner is that the Lower Appellate Court has failed to consider the welfare of the minor, while dealing with the matter in a hasty manner. Sardar Bilal Firdous, ASC added that the Petitioner has produced sufficient evidence in support of his claim whereas the Respondent No.1 has only produced one document in support of her claim but this aspect of the matter has been overlooked by the Lower Appellate Court. He maintained that welfare of the minor lies with the Petitioner who, being his real father, is in a better position to look after the child, as compared to the Respondent No.1. He contended that the impugned judgment is the outcome of a direction issued by this Court, vide order dated 09.02.2021, in Writ Petition No.398/2021 filed by the Respondent No.1 under Section 491 of Cr.P.C and the Lower Court has ignored the mandate given in paragraph-9 of the said order, whereby it has been observed that the case will be decided on its merit without being prejudiced in any manner by any observation made in the said order.

3. Despite issuance of notice and presentation through counsel, none entered appearance on behalf of the Respondent No.1, hence, she was proceeded against ex-parte on 08.04.2025.

4. Arguments of learned counsel for the Petitioner have been heard and record perused.

5. Perusal of the record shows that the Petitioner filed a petition under Section 25 of the Guardians and Wards Act, 1890 (the "Act") and the Judge Guardian Court, Chakwal after going through the relevant record and discussing in detail each and every aspect of the matter, including welfare of the minor, allowed the said petition by chalking out a schedule for meeting of the minor with the mother, vide order dated 26.04.2023. Subsequently, on appeal of the Respondent No.1, the Lower Appellate Court set-aside the aforesaid order of the Guardian Court through the impugned judgment dated 27.09.2023. The Petitioner has produced sufficient documentary evidence in the shape of his affidavit, proof of salary, school fee card, photos of minor as Exh.Al to Exh.A4 respectively whereas the Respondent No.1 has only tendered one document in her evidence, i.e. school certificate of the minor, as Exh.R2, besides filing her affidavit as Exh.R

1. Admittedly, the Petitioner is serving as a Quran teacher at Air Foundation School System, Rawalpindi and he is looking after his son/minor in a better way with improved lifestyle and higher quality of life, as is evident from the pictures/Exh.A

4. Whereas, the Respondent No.1, who is residing in a village, has also admitted the minor in a school located in the said village. The finding given by the Lower Appellate Court that when a mother does not get remarried then hardly any scope is left for the father to retain custody of a child of a tender age, is oblivious to the principles settled by the superior Courts of the country from time to time in such like matter that paramount consideration in custody of a minor is the welfare of the minor and nothing else. In this regard, reference can be made to the dictum laid down by the Supreme Court of Pakistan in the case of Mst. Seema Chaudhry and another versus Ahsan Ashraf Sheikh and others (PLD 2003 SC 877) wherein it has been held that: "...the duty of the Court to search out the welfare of the minor by considering the essential factors relating to his welfare and should not confine only to the consideration that the mother or father has more love and affection for the minor or that the minor was more associated with the mother or father. The primary consideration for determining the question of custody is always the welfare of the minor and there could not be an absolute rule and fixed criteria to determine the question of welfare in the same manner in each case rather it being a mixed question of law and fact is decided in the facts of each case and consequently the factors having only social importance or the desirability of the father or mother to retain the custody of minor, would not overwrite the consideration of welfare in determining the question of custody...." Recently, in the judgment reported as Irfan Arshad v. Mst. Zainab Noor and 2 others (2025 MLD 401) this Court has also discussed in detail the welfare of a minor in light of applicable provisions of the Act. Relevant portion from paragraph-11 of which is reproduced hereunder for ready reference: "...the paramount consideration in all such situations would be the betterment of the minor and even a mother may be deprived of the custody of a minor if circumstances of the case so allow. In the cases, concerning the custody of a child, the Guardian Court is not required to go into the intricacies /technicalities of the matter, rather is obliged to confine itself to the extent of the welfare of the child/minor, which is a paramount consideration." The Guardian Court has only considered the welfare of the minor in light of the documentary evidence produced by the Petitioner/father while dealing with the matter strictly as per afore-quoted observations of this Court, through well-reasoned order dated 26.04.2023. Another aspect to be noted here is that the minor was born on 18.08.2018 and now, he is near to attain the age of seven years, therefore, the Petitioner, being real father and natural guardian, can claim his custody as a matter of right. In this regard, reference can be made to the judgment passed by this Court in the case of Sitara Aslam v. Family Judge and others (2018 CLC 382), relevant part from paragraph-6 of which reads as under: "...Under Muslim Personal Law, mother is entitled to the custody of daughter even after she has attained the age of puberty and until she is married, whereas the father can claim custody of his male child after seven years. The welfare of the minors is to be determined while keeping in view their mental, intellectual, moral and spiritual wellbeing. The Guardian Court has also to look into qualification of parents, the age, gender, religion of minor, the character and capacity of the proposed guardian and his/her nearness of kin to the minor as provided under Section 17 of the Guardians and Wards Act, 1890 (the "Act")..."

6. In view of the above backdrop, the instant writ petition is allowed. The impugned judgment dated 27.09.2023 passed by the Additional District Judge, Chakwal is set-aside, being not sustainable in the eye of law. No order as to costs. MQ/M-93/L Petition allowed.