1976 PLP 28 (SCMR)

MUHAMMAD GUL, J.‑This appeal by special leave raises a question as to the custody (hizanat) of Mst. Tayyaba Bashir aged about 11 years, the contest being between her father the appellant and her mother the respondent herein. The parties were married in October 1963 and the minor was born to them on 14th December 1964. Sometime after her birth there grew estrangement between them and the respondent started living with her parents taking the minor with her. On 17th February 1968, when the marriage between the parties still subsisted, the appellant applied under section 25 of the Guardians and Wards Act, for the custody of the minor. During the pendency of the proceedings before the Guardian Judge, the appellant divorced the respondent on 13th July 1969. She has since contracted second marriage with the husband of her deceased sister and is at present residing with her new husband at Rahwali in District Gujranwala and the minor was left to the care of her maternal grand mother and maternal grand father who it appears is a prosperous businessman. It appears that the minor was sent by her maternal grant‑parents to the Queen Marry's College, Lahore, and its a student of III class. The learned Guardian Judge after hearing the parties' evidence, vide Judgment dated 16‑3‑1973 entrusted the custody of the minor to the appellant mainly on the ground that her mother has since remarried a person who was not related to the minor within the prohibited degree. On appeal by the respondent, the learned Judge in the High Court vide judgment dated 5‑2‑1974 set aside the order of the learned Guardian Judge and entrusted custody of the minor to her maternal grand‑mother who under the Muslim Law had a preferential right to the hizanat until the minor attained puberty. Another reason which influenced the learned Judge was that there was some evidence on the record which tended to show that the marriage between the parties hereto broke because of the avariciousness of the appellant in that he asked the respondent to transfer house No. 19‑D in his favour which the respondent's father had given her in dowery but she refused to oblige him. Leave was granted to consider whether the High Court was right to entrust the custody of the minor to her maternal grand‑mother without ever consulting the wishes of the minor herself who had reached the age of discretion. Since the grant of leave in the case, by order dated 3‑7‑1974, the custody of the minor vitas directed to be entrusted to Sh. Umar Draz, the minor's maternal gre4d‑father to enable the minor to attend the wedding of her maternal aunt. By a subsequent order dated 28‑4‑1975 it was directed that during the pendency of the appeal the minor shall remain in the custody of her maternal grand parents though however the appellant and his mother will be entitled to meet the minor for one hour after school hours on every Saturday but they will not be allowed to take the minor with them out of the school campus. It was further directed that the appeal will be heard before vacation. Pursuant to the direction by the Court in the last mentioned order, this appeal has come: up today for bearing in the presence of the learned Advocate‑on‑Record of the appellant and Mr. Nabi Bakhah, general attorney of the respondent. Having carefully considered the material on the record and the ambient circumstances, we consider that the High Court had rightly, come to the conclusion that it would conduce to the welfare of the minor to remain for the time being in the custody of her maternal grand parents who have made adequate arrangements for her education and upbringing. But to ensure that the minor is not bereft of the paternal affection, the existing arrangement to enable the appellant and his mother to meet the minor in the school campus on every Saturday for one hour after school hours will continue to remain in force until the order is modified or recalled by the Guardian Judge or hizanat properly reverts to the appellant whichever is earlier. However, during period of long or short vacation, the maternal grand mother of any person authorised by her in that behalf, shall produce the minor before the Guardian Judge Lahore on every Saturday at 8.00 a.m for temporary delivery of her custody to her father (the appellant) who will be at liberty to take her with him, but who shall produce the minor before the Guardian Judge on the following Monday at about 10.00 a.m. for the return custody of the minor to her maternal grand mother or any other person authorised by her in that behalf. This shall take effect immediately. With the above modification we maintain the order of the High Court, dismiss the appeal and leave the parties to bear their own costs. Order accordingly.