2007 PLP 1089 (MLD)

SYED SAKHI HUSSAIN BOKHARI, J.

In this constitutional petition, the petitioner has prayed for setting aside order, dated 14-9-2005 passed by learned Addl. District Judge, Faisalabad.

2. Relevant facts for the disposal of this writ petition are that Javed Irfan, petitioner filed application under section 25 of Guardians and Wards Act for the custody of his minor son (Ans Javed) and stated that he was married to respondent No.3 on 12-11-1993 and out of this wedlock on 15-9-1995 Ans Javed was born and now he is with respondent No.4. The petitioner further stated that now Mst. Sumaira Liaqat (respondent No.3) has contracted second marriage with Ghulam Murtaza and a son was born out of this wedlock whereas minor (Ans Javed) is with Liaqat Ai (respondent No.4) and that it is in the welfare of minor that he should be given to him. The respondents mentioned in their reply that they are bringing up the minor in better manner and he is healthy and getting education. Learned trial Court framed issues, recorded evidence and accepted the application brought by petitioner vide order, dated 2-3-2005. The respondents filed appeal thereafter, which was accepted vide order, dated 14-9-2005 passed by learned Addl. District Judge, Faisalabad. Hence this writ petition.

3. I have heard the arguments and perused the record.

4. As mentioned above petitioner had filed application under section 25 of Guardians and Wards Act for custody of his minor son (Ans Javed). His application was accepted but respondents filed appeal which was accepted and application brought by petitioner was accordingly dismissed. The minor was born on 10-9-1995 and now he is aged about 11-1/2 years. Admittedly petitioner has contracted second marriage. The impugned order shows that learned Addl. District Judge interviewed the minor in his chamber but, he was not willing to live in the house of his father (petitioner) with his step-mother. At that time he was .student of Class-V. The impugned order was passed on 14-9-2005, therefore, now he must be student of Class-VI or VII. The minor is living with his maternal grand father for the last many years who is looking after him and duly attending to his educational requirements. As stated earlier petitioner has contracted second marriage and has children from said wedlock, hence it is not safe to remove the minor from his present family set up. Moreover minor is living with his maternal grandfather happily. As mentioned above now minor is aged "about 11-1/2 years. In these circumstances I find that it is in the welfare of the minor that he should be permitted to continue to live with his maternal grandfather (Liaqat Ali, respondent No.4). As such learned Addl. District Judge has rightly accepted the appeal brought by respondent. The order, dated 14-9-2005 shows that learned Addl. District Judge has decided the appeal brought by respondents after appraisal of entire material available on record. Para. No.8 of the said order reads as under: "(8) Javed Irfan, respondent is having kids from his second wife, he might be leading prosperous life and Mst. Sumaira Liaqat might be leading prosperous life, but facts remains, that minor cannot be left on the mercy of step-mother, step-brothers and step-sisters in house of Javed Irfan, who is business man and almost all time consumes outside the house. Likewise minor also cannot be left at the mercy of step-father of the minor, with whom, his mother has been married for the second time. Paternal grand parents of the minor have already been died, who, might be in position to extend any type of affection and love to the minor. While giving the custody of minor, significant aspect would be considered regarding welfare of the minor. After arguments, I have also interviewed the minor in my chamber, who is very clever and intelligent and was able to answer of each question rapidly. He was not willing to live in the house of his father with step-mother at any cost and was very happy with his maternal grandfather. Minor is at the age of 10, years who is studding in 5th class and was well dressed. The place where minor is living is common where both the parties can see him properly. In my opinion, at this stage, it would be most appropriate to keep the minor with the maternal grandfather where he is living. However, maternal grandfather of the minor shall in the welfare of the minor, allow both, father and mother to see him in any common place wherever, is desired by the parties with mutual consent. So, that minor should attain the affection and love of parents properly. In these circumstances, order of learned trial Court is set aside and instant appeal is accepted." It is well reasoned order. There is no illegality or infirmity in the impugned order. Even otherwise in determining the question of custody of minor the paramount consideration is the welfare of the minor. Reliance can be placed on the case of Safdar Hussain and others v. Mst. Parveen Umar and others (PLD 2004 SC 357). As such it is in the welfare of the minor that he should remain with his maternal grandfather (Liaqat Ali, respondent No.4). So impugned order is just and proper and there is no justification to warrant interference by this Court.

5. The upshot of the above discussion is that this writ petition has no force and the same is accordingly dismissed. No order as to costs. H.B.T./J-8/L Petition dismissed.