1988 PLP 1741 (CLC)

Najam‑ul‑Hasan Kazmi for Respondents. Date of hearing: 28th October, 1987. The petitioner, Zulfiqar Ahmed, has moved this constitutional petition praying therein that the impugned order dated 7‑7‑1987 passed by the learned Additional District Judge, Lahore, may be declared without lawful authority and of no legal consequence, and further that the order dated 18-2‑1987 passed by the learned Guardian Judge, Lahore, may be restored.

2. On 13‑7‑1987 a notice was sent to respondent No.l and in obedience to the order of the Court, the said respondent is present before the Court and is represented through her learned counsel.

3. Briefly stated the facts of the case are that respondent No.l, Mst. Qaisra Sattar wife of the petitioner filed an application under section 25 of the Guardian and Wards Act, 1890 for obtaining the custody of her minor son namely Awais Zulfiqar who was born on 25‑1‑1986. The said application is still pending adjudication before the learned Guardian Judge, Lahore. Alongwith the abovesaid application, a petition under section 12 of the Guardian and Wards Act (Annexure 'C') was also moved for obtaining the interim custody of the said minor. This application was contested by the petitioner and reply to the application was submitted vide Annexure 'D'. The learned Guardian Judge vide his order dated 18‑2‑1987 dismissed the above referred application under section 12 of the Guardian and Wards Act. It was observed by the learned trial Court that prima facie it was in the welfare of the minor that his custody may be allowed to remain with the petitioner and further that there was no justification to hand over the custody of the minor to the respondent‑mother. Respondent No.l feeling aggrieved of the abovesaid order went in appeal which was heard and accepted by the learned Additional District Judge, Lahore vide his order dated 7‑7‑1987. As stated earlier, the petitioner has challenged the abovesaid order passed by the learned Additional District Judge, Lahore dated 7‑7‑1987, by filing this constitutional petition.

4. Learned counsel for the petitioner submitted that the facts and circumstances of the instant case, amply demonstrate beyond any shadow of doubt that the respondent‑mother was not at all interested in receiving the custody of the minor inasmuch as she did not file the application for the custody promptly. The learned counsel, submitted that first application for custody of the minor was moved by respondent on 3‑11‑1987 whereas for the interim custody she moved a petition on 7‑12‑1986 almost after about one month. On this basis the learned counsel stressed that if the respondent No.l was keen to get the custody of the minor, she should have moved an application immediately without losing any time. According to the learned counsel, this shows the extent of love and affection on the part of the mother for the minor. It is stated that this is in the evidence that the child was not on breast feeding. Learned counsel stated that if at this stage the minor is dislocated and is handed over to the mother this might cause immense shock to the minor which may affect his health adversely. Learned counsel for the respondent submitted that under the mandatory provisions of Muslim Law the mother is entitled to have the custody of the minor immediately as his age is admittedly less than seven years. The learned counsel stated that the minor is immensely suffering in health because of his separation from his mother. The best interest of the minor requires the immediate restoration of his custody to the mother. I have heard the learned counsel for the parties at some length. Without expressing any opinion on the merits of the case, lest it may prejudice the case of any of the parties, I am of the view that this is not a stage to dislocate the minor. Apart from the respective contentions of the parties, it will not be proper to pass an order handing over the custody of the minor to respondent at this stage. Both the learned counsel for the parties have produced ample case law in support of their respective contentions. These authorities need not be discussed at this stage. However, the balance of convenience lies in the maintenance of the status quo regarding the custody of the minor. On the basis of number of authorities, the learned counsel for respondent No.l has contended that welfare of the minor lies with the mother because the command of the Muslim Personal Law is that before the minor comes to seven years in age, his custody should remain with the mother, and therefore, the custody should not be entrusted to the father. Generally speaking, this is true that under the well‑known principles of Muslim Law mother is entitled to have the custody of the minor, below the age of seven years and thereafter the father is entitled to receive the custody of the minor. Learned counsel for the petitioner has contended that the minor is in excellent health and that at this stage if the minor is displaced from the custody of the father, this may cause adverse affect upon the health of the minor. I summoned the parties to appear before me in person. The petitioner was directed to bring the minor in Court. Today, both the parties are present. The minor has also been produced. The minor appears to be in good health. The respondent mother was asked to go near the minor and accordingly, she went but the minor did not go to his mother. Then she was directed to take the minor. The respondent took the minor and upon this the minor wept bitterly and then the minor was directed to be given back to the father. This is of course a very unfortunate case. It appears that the minor has not shown any interest whatsoever toward his mother, perhaps because of his separation for considerable period, the minor has forgotten his mother. The parties have also been heard by me. Learned counsel far the parties have raised several, contentions and have discussed their view points at some length. I need not go into the merits and de‑merits of the case at this stage, because the same shall be done at the time of final disposal of the main case. However, the fact remains that the Courts have to see .as to where the welfare of the minor lies. I have given my anxious consideration to the facts and. circumstances of the case and statements of the parties and thereafter have come to the conclusion that the interim custody should be allowed to remain with the petitioner‑father. The interim order having been passed by the learned Guardian Judge is well‑reasoned. The mere fact that respondent No.l did not take prompt action to receive the custody of the minor from the father- petitioner immediately after the separation between the parties took place, disentitles her to have the interim custody of the minor. The minor is living with the petitioner since the date of his birth. It has been disclosed that the minor is living in the company of his paternal aunts, grand‑mother as well as his father. This aspect of the case has not been given due weight by the learned Additional District Judge, while accepting the appeal, of respondent No.l. The learned appellate Court was swayed with the general rule laid down by the Muslim Law. The learned appellate Court has not given his opinion as to where lies the welfare of the minor for the time being. Under these circumstances while setting aside the appellate order of the learned Additional District Judge, I hereby restore the order passed by the learned Guardian Judge dated 18‑2‑1987.

6. Both the learned counsel for the parties have submitted that this is a case which requires that the main guardianship petition may be disposed of at the earliest. Learned counsel for the respondent has submitted that he has to produce only two witnesses in the case and he will conclude his evidence on one date. Similar is the statement of the learned counsel for the petitioner. Therefore, the evidence of both the parties can be concluded at one date by the learned trial Court. Both the learned counsel for the parties are of the view that the trial of the main case can be concluded within two weeks positively.

7. The learned trial Court is directed to dispose of the case one way or the other within fifteen days without fail and compliance report thereof shall be submitted by him through the Registrar of this Court.

8. The petitioner is directed to make the minor available so that respondent No. 1 may be able to see him twice in a week in accordance with the arrangement to be made by the learned counsel for the parties. Once in a week respondent No.1 will come to see the minor in the office of the learned counsel for the petitioner from 4‑00 p.m. to 6‑00 p.m. and on the second occasion in a week, the respondent No.1 will come to see the minor in the office of her learned counsel from 4‑00 p.m. to 6‑00 p.m. This arrangement shall continue till the final disposal of the case. With these observations, the writ petition is accepted leaving the parties to bear their own costs. M.Y.H./Z‑36/L Petition accepted.