2002 PLP 2551 (YLR)

2. The writ petitioner' alleged that he being father and natural guardian of the minor was entitled to the custody of the minor, that respondent No.3, did not possess means and resources to properly bring up and educate the minor and that she also did not enjoy sound reputation.

3. The petition was opposed by respondent No.3. After framing issues, recording evidence and hearing the learned counsel for the parties, the Guardian Judge vide order dated 15‑2‑2001 dismissed the said petition.

4. Appeal filed by the writ petitioner against that order was also dismissed by Additional District Judge, Chichawatni on 19‑9‑2001.

5. Through this Constitutional petition, both the aforesaid orders have been called in question.

6. It is urged by the learned counsel for the petitioner that:‑‑ (i) Both the orders of the Guardian Judge as well as that of Additional District Judge, are against law and facts as law of Hizanat was ignored by both the Courts below under which father is entitled to the custody of his minor son in the absence of mother. (ii) It was in the interest and welfare of the minor to live in the company of his younger sister who is in custody of the petitioner. (iii) If the minor remains in the custody of respondent No.3, there is likelihood of danger to his health and life; and that (iv) Orders of both the Courts below are without lawful authority and of no legal effect.

6. The petition is strongly opposed by the learned counsel for respondent No.3. Arguments heard. Writ petition and its annexures perused.

7. In Constitutional jurisdiction powers of the High Court are not analogous to those of an Appellate Court. In writ jurisdiction order of subordinate Court can be declared as without lawful authority and of no legal effect but findings of fact recorded by the Courts below cannot be substituted nor opinion regarding adequacy of evidence can be given. Such matters should be' decided by the Courts vested with jurisdiction to decide them.

8. In case relating to custody of minor overriding and paramount consideration always is the welfare of minor and the fact that father is lawful guardian of his minor child does not compel the Court to pass an order in his favour unless it is in the minor's welfare to do so.

9. While appearing in the witness box the writ petitioner had admitted that his minor daughter who was in his custody has died, therefore, the question of minor living with his younger sister did not arise. Respondent No.3, also admitted during cross‑examination that age of the minor is less than 5 years; that respondent No.3, sends him to school as well as to mosque for religious education; he also admitted that in connection with his business he goes to his shop early in the morning and returns home in the evening; he also admitted that after obtaining custody of the minor he intends to re‑marry. Respondent No.3, deposed that since birth the minor is living with her and he is enjoying good health.

10. Finding of the learned trial Court was that minor was living with his maternal grandmother (respondent No.3) since a long period due to which he had developed intimacy with her; that on account of the death of his real mother, the minor needs love, care and affection of his maternal grandmother; that lack of financial resources of the grandmother was not a valid ground for disentitling her to the custody of minor as it was the duty of the father to provide for the maintenance of his minor son; that the minor was being educated in school as well as in mosque; that the father (writ petitioner) had admitted that he intends to remarry, therefore, minor was likely to face his step mother in case his custody was entrusted to the father (writ petitioner) and that in such tender age maternal grandmother was more suitable for looking after and bringing up the minor.

11. Perusal of the impugned order shows that it is entirely reasonable. In appeal the findings of the learned trial Court were affirmed. Concurrent finding of the Courts below on question of fact does not call for interference. No principle of law was violated. Guardian Judge (trial Court) had the jurisdiction to entertain and decide the petition under section 25 of the Guardians and Wards Act and appeal against that order is provided, therefore, Additional District Judge, was legally competent to hear and decide the same. By no stretch of imagination it can be, therefore, said that orders passed by the aforesaid Courts were without lawful authority and of no legal effect. It was the petitioner who had tiled the guardian petition as well as the appeal hence after failing in both the forums it does not lie in his mouth to say that the aforesaid Courts below had no lawful authority to pass the impugned orders. For the reasons stated above, the writ petition is without any merit, it is accordingly dismissed. Q.M.H./M.A.K./M‑1319/L Petition dismissed.