2020 PLP 302 (MLD)

MUHAMMAD NASIR MAHFOOZ, J.

Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Mst. Anwari Bibi has prayed that:- "The petition may kindly be allowed and set aside the judgment and decree dated 14.10.2017 passed by respondent No.2 as well as judgment and decree dated 23.4.2018 passed by respondent No.3 and by accepting petition of the present petitioner by setting aside order and judgments of both the Courts below. Any other relief which this Honourable Court deems fit and proper may also be awarded in the interest of justice".

2. The facts in brief are that petitioner Mst. Anwari Bibi, being grandmother of minor Mst. Alisha Bibi, approached the Guardian Court/Senior Civil Judge, D.I.Khan by filing application for her custody. After service of summons, the respondent No.1, on appearance before the trial Court, submitted written reply, whereafter, issues were framed by the trial Court and parties produced their respective evidence. After conclusion of trial, the learned trial Court vide judgment dated 14.10.2017, dismissed the application with the direction to the petitioner to handover the custody of minor daughter to respondent within fifteen days positively. Aggrieved of the aforesaid judgment, the petitioner preferred an appeal before the District Judge, D.I.Khan. The learned Additional District Judge-III, D.I.Khan vide impugned judgment dated 23.4.2018, dismissed the appeal, hence this writ petition.

3. I have heard arguments of learned counsel for the parties and perused the record.

4. Petitioner being grandmother of Alisha Bibi minor, filed an application for custody on 31.5.2016, which has been put to trial on three pertinent issues framed from contentions of both the parties. The foremost important issue relates to the welfare of minor. Learned counsel for the petitioner has referred to 2007 MLD 1089, wherein the custody was handed over to maternal grandfather of minor and refused to his father. He also referred to 2011 CLC 1912, wherein it was held that father was not interested in welfare of minors and had filed application for custody only after suit for maintenance was filed by the minors. It is also held that the minors were studying in Maddrassa/school while the maternal grandmother and his sons own land and she was bearing expenses of minors from sources and money paid by her sons. Keeping in view welfare of minors, the custody was handed over to maternal grandmother.

5. Learned counsel for the respondent relied on 2018 CLC 452, 2012 MLD 762 and 2018 SCMR

590. In case reported as 2018 SCMR 590 'Nasir Raza v. Additional District Judge, Jhelum and another', the honourable Supreme Court of Pakistan, handed over the custody of minors to their father who had not contracted another marriage and had not even returned to his job abroad, so the welfare of the minors was considered to be with their father. In case 2018 CLC Islamabad 452 'Muhammad Shabbir and another v. Additional District Judge West, Islamabad and 2 others, the custody of minors was handed over to their mother as she had almost reached the age of puberty. In judgment reported as 2012 MLD S.0 (AJ&K) 762 'Mst. Zainab Bibi v. Zaffar Iqbal, it was held that grandmother is of advanced age and was herself dependent on her sons and daughter-in-law, so she could not properly look-after the minors, moreover, the minors appeared in the Court along with mother and stepmother and stated that they did not want to go with their maternal grandmother. It was held that their own opinion could not be lightly ignored.

6. In the instant case, the minor is 7/8 years of age and still living with her grandmother present in Court. The minor child was called and questioned about the name of her school but she only replied that she is studying in class 4th in a private school. Respondent her father who has custody of two sons, was also present with his one son in Court, the minor Alisha Bibi was asked the name of her father, to which she replied and named her grandfather Muhammad Afzal, as her own father. She even did not know her brother present in Court and denied that he is her brother, she also denied that the respondent present in Court is her father.

7. It is on record that minor Alisha Bibi was one and half month old when her mother was divorced and was born in her grandparent's house. Since her birth, her father has never applied for custody in any Court although he has resisted the present application for guardianship filed by her grandmother. There is no record to show that the father has ever maintained minor Alisha by offering anything in cash for her maintenance. It appears that he has devoted his life to the upkeep of his sons and his second wife and has never cared to get acquainted with his minor daughter. Circumstances of the instant and those referred by learned counsel for the respondent have got distinguishing features.

8. There is plethora of judgments, wherein the welfare of minor has been kept supreme and the custody has varied from one parent to another and from one relative to another. Reference in this regard is made to case reported as PLD 1998 Lahore 67, titled Muhammad Yousaf v. Mst. Anis Bibi and 2 others. In this case, father had contracted second marriage and when the minor was 1-1/4 year of age the parents got separated with the result that the minor remained with her mother right from her birth. In the said case, it was also alleged that the mother by marrying the stranger was disqualified to maintain the custody of minor daughter. Similarity of the said case to the instant case is more closer as the custody of minor was refused to the father.

9. In case reported as PLD 2005 Karachi 610, titled Abdul Razzaque and 3 others v. Dr. Rehana Shaheen and another, the children aged about 12 years, 8 years and 5 years were handed over to their mother when the custody was refused to the grandparents despite the fact that their deceased father had deep animosity with their mother which was though not proved. The principle of welfare of minor was considered and held that the mother was preferably entitled to the custody of children.

10. In case reported as PLD 2003 Quetta 131, titled Mst. Farah Iqbal v. Muhammad Anwar and 2 others, the custody of minor daughter Mst. Maryum was handed over to her mother because she had not remarried but was a well-educated and her grandfather was a well-established businessman. It was also held, that the custody of minor could not be refused to a mother even if she had no independent income of her own as it is always, the father, who has to provide maintenance, however, it was held that the mother shall make arrangements for meeting of minor with her father and grandfather, on every Sunday from 10-00 a.m. to 4-00 p.m. besides Eid days and birthday.

11. In case titled Mst. Gulzar Bibi v. Rafaqat Ali Shah and another (PLD 2000 Peshawar 23), the custody of two minor daughters and one sons was involved and the mother being a school teacher, was granted the custody keeping in view the welfare of minor as paramount consideration. Despite her remarriage, the custody of her children was not refused.

12. Honourable Supreme Court, in case titled Mst. Nighat Firdous v. Khadim Hussain, reported as 1998 SCMR 1593, held that since the minor living with his mother since his birth so his welfare lies with his mother and not father who has not taken any interest.

13. In another case reported as PLD 2003 Supreme Court 877, titled Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others, custody of a minor child of eight years was involved. In this case, keeping in view the welfare of minor son the custody was handed over to his father but it was also held that forfeiture of right of mother to custody of a child after her remarriage could not disqualify her as a general rule but still the welfare of minor is to be kept supreme. The custody was consequently handed over to his father.

14. Reference is also made to judgment reported as PLD 2004 Supreme Court 347, titled Sardar Hussain and others v. Mst. Parveen Umer and others, wherein father claimed custody on the ground that the mother had contracted second marriage and had children from the second marriage, but the custody was not handed over to the father, as the welfare of children was considered to remain with their mother.

15. Reference in this regard is also made to case titled Malik Muhammad Hussain and another v. Malik Ghulam Qadir and others (2004 SCMR 1735), wherein the custody was handed over to the father after the death of his wife.

16. In yet another judgment reported as 2004 SCMR 1839, titled Mehmood Akhtar v. District Judge, Attock and 2 others, the custody was handed over to father of the minor daughter in preference to her mother.

17. In case reported as PLD 2007 Supreme Court 292, titled Sajjad Ahmad Rana and others v. Ms. Louise Annee Fairley and others, custody of a minor child was handed over to her mother, who was a foreigner.

18. As the circumstances of each case differs vis-a-vis welfare of child differs, it would be advantageous to refer Chapter XVIII, Paras 353 and 354 of Mohammadan Law. In Para 353, the mother howhighsoever, is placed at serial No.1 in the right to custody of a minor child under the age of seven years in female relations. Under Para 354, the female including the mother looses the right of custody if she marries a person not related to the child within the prohibited degree. In the instant case, the mother has not claimed custody but the grandmother, who is residing with her husband/grandfather of the minor, claims to be able to financially maintain as well as properly look-after the minor, so keeping in view welfare of the minor, the grandmother has preferential right as compared to father of the minor/respondent herein. As held above, that the minor Alisha herself did not recognize her father present in Court as she has remained in custody of her mother and grandparents right from her date of birth, therefore, her custody could not be handed over to her father by any stretch of imagination, as it would amount to forcibly putting her in undesired custody. However, the father is legally bound to provide possible maintenance to her even if she is residing separately with her grandparents.

19. To utter dismay, respondent has never requested for visitation rights of the minor in this Court. This altogether proves the lack of bona fides and interest of respondent in maintaining his minor daughter. However, he is legally bound to send money to his daughter through grandparents every month, although petitioner has never asked for financial help from the respondent. In future the minor may face some difficulties as regards her parentage, so respondent shall also oversee her upkeep and for her marriage expenses. The learned executing Court shall bound down the respondent for providing regular maintenance allowance to minor Mst. Alisha or open account in a bank in her name.

20. In cases of custody of minors, his/her welfare is a sine qua non, so the impugned judgments and decrees of learned Courts below suffer due to material irregularity, misreading and non-reading of evidence. The preponderance of evidence produced by the parties proves that the welfare of minor child Mst. Alisha lies with the petitioner more in preference to her father, therefore, the instant petition along with C.M. No.575-D/2018 is allowed, the impugned judgments and decrees are set aside and the application of the petitioner for custody of minor is allowed. ZC/246/P Petition allowed.