2003 PLP 3245 (YLR)

7. The trial Court keeping in view the welfare of the minor and other circumstances supported by the evidence appointed her maternal grandmother as her guardian and also held her entitled to custody. The learned Judge in the Shariat Court however, set aside the order mainly on the ground that the welfare is presumed in the Personal Law applicable to the minor and according to the Personal Law the guardianship and custody should be given to the father.

8. It may be mentioned that guardian is appointed under section 17 of the Guardians and Wards Act while custody is made under section 25 of the said Act. To appreciate the proposition the relevant sections 17 and 25 of the Guardians and Wards Act are reproduced:‑‑ "

17. Matters to be considered by the Court in appointing guardian.‑‑‑(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions. of this section, be guided by what, consistently with law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the character and capacity of the proposed guardian and his nearness kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (4) Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981. (5) The Court shall not appoint or declare any person to be a guardian against his Will.

25. Title of guardian to custody of ward.‑‑‑(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the First Class by section 100 of the Code of Criminal Procedure, 1898 (Act V of 1898). (3) The residence of ward against the Will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."

9. According to the aforesaid provisions of law, the Personal Law to which he minor is subjected should be the guide for he appointment of his guardian which is further subject to two limitations; (i) The provision of this section (ii) and welfare of the minor. If consideration of the welfare of the minor or the conclusions arrived at as a consequence of the guidance in the section itself makes ,it impossible to follow the guidelines of the Personal Law then the same may be abandoned and steps most conducive to the welfare of the minor and consistent with the provisions of the section have to be taken. If the Personal Law of the minor is not inconsistent with either of the provisions of this section or the welfare of the minor then it should be followed.

10. While appreciating the welfare it has to be seen that the welfare includes his moral, spiritual and material well‑being. While considering what is the welfare of the minor the the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kinship to the minor and the preference of the minor if he or she is intelligent enough to make it.

11. Similar matter came under consideration before the Supreme Court of Pakistan in a case reported as Zahoor Ahmad v. Mst. Rukhsana Kausar and 4 others 2000 SCMR 707 where it was held as under:‑‑ 4 ..In this regard, reference was made to the second marriage of the petitioner and having got two children out of the wedlock. After great deal of the discussion, the learned Single Judge in the High Court reached a categorical conclusion that it would not be safe to remove the minor from his present family set up where he is well adjusted and make him live under the shadow of a step‑mother'. The minor was summoned in Court and was examined by the learned Judge himself. The minor informed the learned Judge that he was happily residing with the respondents and did not desire to go over to his father .....

8. The whole burden of the case of the petitioner in the two Courts below and in the learned High Court was and is that he is financially better off and well‑to‑do man of status and can afford to give better education as a father of his minor son and that respondent No.1 having contracted second marriage and having got five children from her new marriage was ill‑equipped to properly bring up and educate her minor son. This stance of the petitioner is regrettably ill founded. The learned two Courts below have reached a definite conclusion that so far as financial status of two families is concerned, they are almost equal. The petitioner being abroad earning his livelihood as labourer cannot possibly be held to be a fit person to hold the custody of the minor indirectly through his own parents. If the minor has to live with the grandparents then the learned Appellate Court and the learned Judge of the High Court found the maternal grandparents to be more entitled thereto because the minor ha; developed grandsons ties with then rather than to the paternal grandparent The learned Judge in the High Court has also noted that the petitioner was not interested in the custody and he was pursuing the matter only as counterblast to the application for maintenance of the minor filed by the respondents against the petitioner. He also noticed that the minor was being looked after fully and educated by the maternal grandparents of the minor under the general supervision of his mother. " The case reported as Tassadiq Hussain Shah v. Mst. Surraya Begum 1980 CLC 1802 can also be referred in support of proposition where this, Court held as under:‑‑ "

12. Under section 25 of the Guardians and Wards Act emphasis is laid on the welfare of the minor. Welfare of the minor, therefore, is the guiding factor in the matter of delivery of the custody. Under the Guardians and Wards Act, Personal Laws have been subordinated to the welfare of the minor and a Court may order the return of ward to the custody of the guardian only if it thinks it as necessary in the interest of minor. The welfare of the minor is also partly dependent on the eligibility of the guardian to get the custody. A guardian can assert so long as he is a fit person to get the custody.

13. Before going through the cases which speak about the fitness of the father it is necessary to remember that the rights of parents, regarding the custody and control of their children, are to be exercised not in the interest and for the benefit of the parents but in the interest and for the welfare of the children themselves. In this view of the matter, the Court would be perfectly justified in imposing limits upon the father's right of custody if the exercise of such rights would materially interfere with the health and happiness of the minor.

17. It is now settled law that decision of each case depends upon its circumstances. However, paramount the right of a father may be that right, in our opinion, is liable to be defeated where it is shown that it is better in the interest of the minor and for its welfare that it should remain where it is. If a minor has for many years from the tender age, as in the present case, lived with his mother and has been well cared for arid during that at time the minor's father has shown lack of interest in the minor, these are, in our opinion, circumstances of very great importance. They bear both upon the question of the interests and welfare of the minor and on the bona fides of the appellant.

20. Summarizing the deductions that could be drawn from the above cases will be seen that while all priority in preference is given to the father the mother's custody is being preferred more and more because of the warmth of affection, an equal to which the Court have been definite, could not be got elsewhere. The step‑mother in the household of the father has been taken almost as a factor against the welfare of the minor. A father may render himself unfit for the custody of the minor child and without rendering his house unfit for the minor's residence by bringing in a step‑mother for him. The appellant in this case did not visit minor since a long time throughout minor's life and he had not taken the slightest notice of him and so he has disentitled himself to have his custody.

24. This clearly shows that the father for entitlement to the custody of the minor can lose such right if such circumstances of a given case show that welfare of the minor will not lie with the father. In the present case, as stated earlier, the father has neglected to look after the minor with a father's eye since 14 years and also cared not to maintain him and for that reason he has disentitled himself to have custody of the minor. If the appellant puts him in a convent or some other good school the mother would not put any hindrance in the way of the father." The proposition finds support by an authority reported as Javed Iqbal v. Mst. Kulsoom Bi 1996 SCR 33 wherein this Court held as under:‑‑

8. This Court normally does not interfere in the concurrent findings of fact recorded by the trial Court and confirmed by the Appellate Court unless of course, it is shown that there was a misreading or non‑reading of the evidence. Before us the learned counsel for the appellant could not point out any misreading or non reading of the evidence by the Courts below. So any indulgence by this Court is not warranted by the law. From the evidence produced by the respondent before the Judge Family Court it was clear that the dispute was concerning the custody of the minors. The appellant was well aware that the respondent as well as her both the witnesses have deposed that minors were not looked after properly by the appellant and were not being educated but as said earlier, the appellant could not effectively rebut the evidence produced by the respondent. Even otherwise we are of considered view that while deciding an application for the custody of minors the paramount and predominant consideration is always the welfare of the minors. Under Muhammadan Law, the welfare of the minors is presumed in favour of a person, or a party, who is entitled to the custody of the minors. In the case reported as Shafique‑ur‑Rehman v. Mst. Fazeelat Begum 1995 SCR 136, it was opined by this Court at page 140 in the following words:‑‑ "However, from the perusal of the case‑law cited by the parties, it appears that weight of the judicial view is that welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The said presumption is rebuttable and if the circumstances are brought on record which tend to show that in fact the welfare of minor lies with a person other than one who is not entitled to have the custody of the minors under Personal Law, the Court may refuse the custody to the person who is entitled to it under Muslim Law. However, in such a case there must be strong circumstances justifying to refuse the custody to one who is entitled to the same under Muslim Law."

12. So far as the present case is concerned, as held in the earlier part of the judgment that the facts are not disputed. The mother of the minor was divorced who has contracted second marriage with a person who is not related to the minor in prohibited degree as such she was not entitled to have guardianship and custody of the minor and she did not contest for it. The father of the minor, the respondent herein has also contracted another marriage and there are children out of the new wedlock. Normally after the mother having become disentitled the father who is also a natural guardian is entitled to the guardianship as well as custody. Here the position is different. The minor since her age of six months is living with her maternal grandmother who, according to the evidence brought on record, is well brought up. The trial Court which had the opportunity to record the evidence also held that the welfare of the minor was with the maternal grandmother as such the Court appointed her as guardian of the minor and also held her entitled to custody. The father of the minor after having contracted second marriage, the minor's welfare would not be with him as minor will practically be handed over to step‑mother. Therefore, we arrived at the conclusion that the minor who is already living with her grandmother since her very childhood her welfare also lies with her as such she is appointed guardian and also held entitled to custody. The judgment and order passed by the Shariat Court is set aside by accepting the appeal with costs. Consequently, the order passed by the trial Court stands restored. M.B.A./373/S Order accordingly.