1990 PLP 852 (SCMR)

‑‑‑S.25‑‑Hizanat, right of‑‑‑Non‑pleading of paternal‑grandmother in application‑‑‑Effect‑‑‑In case of a tie between a real mother against whom there was nothing which could disqualify her from claiming custody of her minor daughter and a paternal‑grandmother, the former viz. mother had a vested rightof hizanat‑‑‑Petitioners' contention, that paternal‑grandmother having not been impleaded as a party to application, the same was not competent had no force because if paternal‑grandmother was interested in the custody, she would have come forward to become a party to the application‑‑‑Petition for leave to appeal against concurrent findings of Courts below being devoid of merit, leave to appeal was refused. Muhammad Munir Paracha, Advocate Supreme Court and Manzoor Ilahi, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 18th February, 1990. AJMAL MIAN, J.‑‑Leave to appeal is sought against the judgment dated 23‑1‑1990 passed by a learned single Judge of the Lahore High Court in Writ Petition No.278 of 1988 dismissing the same and maintaining the concurrent findings of the two Courts below that respondent No.3 being the real mother of the minor girl had a vested right of `hizanat'. The petitioner being aggrieved by the above judgment has filed the present petition for leave.

2. Mr. Muhammad Munir Paracha, learned counsel for the petitioner, has contended that section 25 of the Guardians and Wards Act, 1890, hereinafter referred to as the Act, was not attracted to the instant case as the custody of the minor was obtained by the petitioner `a phuphi' on the basis of an agreement dated 2‑8‑1980. His further submission was that since paternal‑grandmother was not impleaded as a party to the application under section 25 of the Act, the application was not competent.

3. It is an admitted position that at the time when Respondent Nb.3 filed the aforesaid application, the age of the girl was 1‑1/2 years. It is also an admitted position that Respondent No.3 was divorced immediately after getting the above document executed. It is also an admitted position that Respondent No.3's husband got married second time whereas Respondent No.3 has not married second time after divorce. Nothing against Respondent No.3 was brought on record which would disentitle her to her right of `hizanat'. In this view of the matter, denial of the minor girl's custody to a mother on the basis of the alleged agreement, the legality of which was under challenge before the Courts below, would attract section 25 of the Act.

4. The second contention has also no force as if paternal‑grandmother was interested in the custody, she would have come forward to become a party to the application. If there is a tie between a real mother against whom there is nothing which can disqualify her from claiming custody of her minor daughter and a paternal‑grandmother, the former has a vested right of `hizanat'. In this view of the matter the paternal‑grandmother obviously because of the above legal position had not come forward to become a party to the application. The petition has no force. Leave is accordingly refused. AA./T‑64/S Leave refused.