2008 PLP 1317 (CLC)

HAFIZ TARIQ NASIM, J.

Through this single judgment I also propose to decide Writ Petition No.3209 of 2007 along with this petition, as common questions of facts and law involve.

2. These writ petitions are filed against the judgment dated 13-2-2007 passed by the learned Additional District Judge, Chiniot, in Civil Appeals Nos.60/13 of 2006 and 61/13 of 2006. Two applications, one by Mst. Safia Bibi respondent and the other by Muhammad Yousaf petitioner were filed for custody of their minor daughter Samina Kausar in the Court of Guardian Judge, Chiniot, who dismissed the application of the respondent and allowed that of the petitioner vide order dated 13-7-2006 holding:

"The above circumstances are helpful to conclude that the respondent is the most appropriate guardian for the minor at this stage, who is the only person to fulfil all sorts of needs of his minor daughter and whom the minor herself has preferred. Therefore, the custody of the minor is declared to be handed over to the respondent; his application for this purpose is hereby allowed whereas that of the petitioner is hereby dismissed."

3. Aggrieved by this order of the learned Guardian Judge dated 13-7-2006 the respondent filed two appeals before the learned Additional District Judge, Chiniot, who accepted the same and reversed the judgment of the learned Guardian Judge.

4. The learned counsel for the petitioner submits that the judgment passed by the learned Guardian Judge was strictly in accordance with law whereas the judgment of the learned Additional District Judge is against the dictates of law and virtually the welfare of the minor was not taken into consideration while accepting the appeals of Mst. Safia Bibi. On the other hand, the learned counsel for the respondent has supported the judgment of the learned Additional District Judge.

5. Arguments heard. Available record perused.

6. After hearing both the parties and perusal of record, I have reached to the following conclusions:- (i) Mst. Samina Kausar minor is about 10 years of age and she is not getting education in any school under the custody of her father i.e. the petitioner. (ii) The petitioner Muhammad Yousaf spends most of his time away from the house for earning his livelihood whereas his mother who is residing with him is aged about 75 years and she could not look after the minor girl. (iii) According to section 352 of the Mohammedan Law, the mother is entitled to the custody of her female child until she attains puberty. (iv) It is an admitted fact that Mst. Safia Bibi i.e. mother of the minor has not contracted marriage with any person and it is also not reflected from any piece of evidence that Mst. Safia Bibi is leading any immoral life.

7. On the strength of the above, I am of the firm view that the welfare of the minor still remains with her mother, so she is entitled to get the custody of minor Mst. Samina Kausar. Accordingly, I confirm the judgment dated 13-2-2007 passed by the learned Additional District Judge and direct the petitioner to hand over the custody of Mst. Samina Kausar to her mother Mst. Safia Bibi. Both the writ petitions are dismissed accordingly. H.B.T./M-151/L Petitions dismissed.