1993 PLP 1204 (CLC)

(c) Muhammadan Law‑‑‑ ‑‑‑‑ Hizanat‑‑‑Financial factor‑‑‑Fact that father was financially better off than the mother could not be made a factor for denying right of Hizanat, for liability to maintain the child was that of the father‑‑‑To support minor financially would be in the interest of father so as to enable him to claim custody of minor later on. (d) Muhammadan Law‑‑‑ ‑‑‑‑ Hizanat‑‑‑Entitlement to‑‑‑Father's plea that mother, after obtaining custody of minor child had contracted another marriage, was neither taken in Constitutional petition nor any proof had been adduced to substantiate such assertion; thus, such plea could not be further examined‑‑‑Father would however, be at liberty to move to Guardian Judge again in case of change of circumstances necessitating and justifying any modification in the order pertaining to the guardianship of the minor child. Ch. Muhammad Arshad for Petitioner. Farooq Azam petitioner, father of Waqar Farooq Gliuman minor, has challenged the judgment dated 6‑7‑1991, of the learned Additional District Judge, Gujrat, whereby the., appeal filed by the respondent mother was accepted and the judgment dated 4‑2‑1991 of the learned Guardian Judge dismissing the application under section 25 of the Guardian and Wards Act, was set aside and the aforesaid application was allowed with the result that the respondent mother was held entitled to the Hizanat of Waqar Farooq Ghuman minor. Learned counsel argued that the reasons given by the learned Guardian Judge have not been dealt with by the learned Appellate Court in the judgment of reversal passed by it and as such the question of welfare of the minor has not been properly adjudicated upon. He argued that this question of welfare of the minor can be examined by this Court in the interest and well being of the minor.

2. Having heard the learned counsel and having gone through both the judgments and other documents placed on the record I rind that the question of welfare of the minor was attended to by the learned Appellate Court properly and the conclusion recorded by it is based on the evidence on record. The plea of the petitioner is that the mother having abandoned the right of Hizanat vide agreement dated 29‑5‑1989, she should not have been granted the custody of the minor and that she is also not financially capable of properly looking after the ward. The learned Appellate Court has pointed out in the impugned judgment that the so‑called agreement abandoning the right of Hizanat has not been proved on record by producing the marginal witnesses. This position is not controverted by the learned counsel for the petitioner. It is also pertinent to note that the recital as to relinquishment of custody of the minor appears in the divorce deed as a condition of divorcing the mother which also included the relinquishment of dower and dowry articles. Apparently such relinquishment cannot be considered to be voluntary as the same has been attached as a condition of granting divorce. Be that as it may, the question of welfare of the minor, as pointed out by the learned Appellate Court, has to be determined independently and the other considerations may be a relevant factor but the welfare of the minor will remain of paramount consideration. The respondent mother has the right of Hizanat ordinarily in the case of a boy till the age of seven years. The ward has not admittedly attained the age. For that reason there has to be some weighty reason for denying the right of Hizanat to the mother.

3. Next it was contended that the petitioner is financially better off than the mother. That also cannot be made a factor for denying the right of Hizanat as the liability to maintain the child remains that of the father. It will be in his own interest to support the minor ward financially so that he is able to claim his custody later on.

4. Learned counsel states that according to the information of the petitioner, the respondent mother has contracted another marriage. Neither this plea has been taken in this petition nor any proof has been adduced to substantiate this assertion. In these circumstances this plea cannot be examined further. It may, however, be added that the petitioner will be at liberty to move the Guardian Judge again in case of charge of circumstances necessitating and justifying any modification in the order pertaining to the guardianship of the ward.

5. Subject to the above observations, no case is made: out interference in the impugned judgment in exercise of extraordinary Constitutional jurisdiction. This petition fails and is dismissed in limine. A.A./F‑288/L Petition dismissed.