2018 PLP 273 (CLC)

MUDASSIR KHALID ABBASI, J.

This constitutional petition has been directed against the decree dated 12.10.2011 passed by the Guardian Judge, Faisalabad and judgment dated 11.01.2013 passed by Additional District Judge, Faisalabad.

2. Brief facts of the case are that petitioner being real father of minor daughter namely Komal Javed aged about 06-years at the time of filing of suit in the year 2006 filed a petition under Section 25 of the Guardians and Wards Act, 1890. This was contested by respondent No.1 real mother of the minor through filing of written statement and reply. Out of the divergent pleadings following issues were framed:- ISSUES:

1. Whether the petitioner is entitled for the custody of the minor and it is in the interest and for the welfare of the minor that she be handed over to the petitioner? OPP

2. Order. Both the parties produced their respective evidence in support of their claim and on 12.10.2011 Guardian Judge, Faisalabad has dismissed the petition in following terms:- "In the light of findings on issue No.1, this petition is dismissed. However, the petitioner being real father of the minor has right to have visitation with minor at least twice in a month. The respondent is bound to arrange meeting of minor with the petitioner privately." Appeal filed by the petitioner was also dismissed vide the impugned judgment dated 11.01.2013 in terms which is as under:- "In view of what has been discussed above, the appeal is dismissed. There is no order as to costs."

3. Learned counsel for petitioner has argued that the Guardian Judge, Faisalabad and the appellate court below have misread the evidence and passed the impugned judgments in violation of settled principle of law. Further argued that respondent No.1 has contracted second marriage with an alien person therefore, custody of a grown up minor girl aged about 16-years with respondent No.1 shall seriously affect her mental as well as psychological wellbeing. Contends that the welfare of the minor is at stake and her further custody with respondent No.1 will cause an immense danger to the life of the minor.

4. On the other hand, learned counsel for respondent No.1 has vehemently opposed the arguments advanced by the petitioner on the ground that petitioner has also contracted second marriage and the minor shall face the cruelty of a step-mother. Being a female minor her welfare requires that she must remain with her mother particularly when respondent No.1 mother of the minor has no offspring on her second marriage. Further argued that the impugned judgments and decrees are passed strictly in line with the law laid down by the superior courts and petition is meritless and is liable to be dismissed.

5. Arguments heard. Record perused.

6. Petitioner appeared as AW.1 before the Guardian Judge and got his statement recorded that respondent No.1 had obtained divorce from him and she is jobless, her brother is labourer in a mill and earns Rs.2500/- per month. He has further deposed that bought up of her minor daughter is not possible because of meagre resources of respondent No.1 and her family. The atmosphere of respondent No.1's residence is not appropriate and the activities of respondent No.1 are also doubtful. AW.2 and AW.3 appeared in support of the stance taken by the applicant /petitioner. On the other hand, respondent No.1 appeared herself as witness and stated that the minor Komal Javed had born on 02.5.2001 she is a student of class 6th and in support she has also produced the educational certificate of the minor. She averted that petitioner/applicant had contracted second marriage and she does not have any child from the second marriage. She is F.A. and Hafiz-e-Quran and is presently working as a Lady Health Worker in Health Department, Govt. of Punjab and get Rs.7000/- per month as salary. RW.2 also supported the stance taken by respondent No.1. Both these witnesses were subjected to lengthy cross-examination but no material contradictions could be brought.

7. Much stress has been laid down by the petitioner counsel that mother of minor had re-married to a stranger real father was the most suitable person to take care of a girl. Reliance is placed on the cases reported as "Mst. Shaheen Bibi (Nusrat Shaheen) v. Zulfiqar Ali Shah Kazrni and 2 others" (1995 CLC 306) and "Mst. Rani v. Bilal Ahmad and 2 others" (2000 MLD 1967).

8. Mere fact of re-marriage of a mother of the minor is not ipso facto disentitled her from retaining custody of the minor. Perusal of the evidence shows that petitioner is a labourer and an illiterate person whereas respondent No.1 is an educated lady and Hafiz-e-Quran. Petitioner has no permanent source of income whereas on the other hand respondent No.1, is working as a Lady Health visitors in Health Department, Faisalabad and getting fixed salary. Minor is a female child of about 16-years of age. Petitioner has failed to produce any evidence before the learned Guardian Judge, Faisalabad from which it can be inferred that the living conditions of the minor child with respondent No.1, are not favourable for the minor. Moreover, no material could be brought on record before the Guardian Judge as well as Appellate court which is adverse to the interest and welfare of the minor.

9. So far as the re-marriage of respondent No.1, it has been specifically laid down in PLD 2000 Peshawar 23, which reads as under:- "Father neither had any source of income, nor he owned any property

Mother was graduate and a teacher in a school of good standard and was leading a responsible life and there was nothing on record to indicate that she was woman of bad character

Application for appointment of guardian filed by the father was dismissed by the Guardian Judge whereas Lower Appellate Court accepted the same in appeal--Contention raised by the father was that the mother had contracted marriage with a person stranger to the minor

Validity, Basic criteria for the appointment of the guardian and the restoration of the custody was welfare of the minors

While dealing with such an application, the Court had to pass its findings on the conditions laid down in Ss.17 & 25 of Guardians and Wards Act, 1890

Right of parents regarding the interest and control of the children was not to be exercised in the interest and the benefits of the parents but in the interest and welfare of children themselves

Father was, though, a natural guardian yet his right was also subordinate to the welfare of the minors

Lower Appellate Court had failed to consider the fundamental criteria of welfare of the minors while dealing with appeal filed by the father

Re-marriage of the mother did not disqualify her for the custody of her children in circumstances-- Factors of re-marriage of a woman and custody of minors had not been made reciprocal in Guardian and Wards Act, 1890

Order passed by Lower Appellate Court was set aside and that of the Guardian Judge was restored." Further held that: "Ss. 17 & 25

Retaining the custody of minor children

Mother contracting marriage, has right to retain the custody of minors

Scope

Marriage of mother with a person not related to the minors and who was a stranger, would not disentitle and disqualify her to retain the custody of the minors on such ground provided welfare of minors lay in their remaining in the custody of their mother

Mother was entitled to retain the custody in circumstances." Likewise in 1998 MLD 1697, it has further been held that: "It is not the duty of the Guardian Judge to find out the right of mothers or fathers regarding custody of minors but the real duty of the concerned Court is to search out in whose custody the welfare of minor lies. Large number of facts have to be taken into consideration with reference to the real concept of welfare of minors, such as factors of health, educations, mental affiliation of minors with custodian's religion, sex, age, expected efforts of remarrying by the divorcee or divorce upon minors etc. Male minors and female minors have different psychologies. The female minor requires longer association of her mother till for puberty on account of several reasons. For example, in our society, the female child is usually bashful, mostly tender hearted and symbol of delicacy in her nature. Such female child is not expected to disclose the signs of awakening of her sex to her father. On account of this reason, a female minor must remain with her mother provided she does not lose her right of Hizanat on account of certain established rules and principles." Dictum laid down in 1997 MLD 965 reads as under: "Minor's mother being employed as teacher in Education Department, in spite of her second marriage could took well after her children as compared to minors grand-paternal mother, grand-maternal mother and paternal aunt

Welfare of minors was the supreme consideration in cases of guardianship."

10. It is settled principle of law that while deciding the application for custody of minor that the paramount consideration is the welfare of the minor. Reliance is placed on case reported as "Mehmood Akhtar v. District Judge, Attock and 2 others". (2004 SCMR 1839) wherein it has been laid down as under:- "The right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of the question of custody." Moreover, this Court, in a case titled "Mst. Sughra Begum v. Ashfaq Ahmed Butt" (PLD 1981 Lahore 393), while resolving the point of custody of minor held that according to Muslim Jurists, custody of minor son till the age of 7 years may remain with the mother and in case of minor daughter till she attains the age of puberty. The relevant portion of the judgment is reproduced herein below:- "There is no doubt that according to certain Muslim jurists, custody of a minor son till the age of 7 years may remain with the mother while that of a minor daughter till she attains the age of puberty and thereafter normally their custody should be restored to the father. It is however, established principle, of law that paramount consideration in all such cases is the welfare of the minor. Even a mother may be deprived of the custody of a minor daughter if circumstances of the case so warrant and in the case of a son his custody may not be handed over to the father even after 7 years if is found by the Court that his welfare doesn't warrant so."

11. Psychological and mental well-being of the minor is directly dependent on the love and affection imparted by a mother to her daughter. Petitioner has failed to point out any illegality or infirmity in the impugned judgments, therefore, no interference under the constitutional jurisdiction is called for. What has been discussed above, this petition is dismissed. MQ/J-7/L Petition dismissed.