1997 PLP 543 (MLD)

Mst. Kausar respondent No.1/plaintiff was married to Zulfiqar a petitioner No. l/defendant. Out of the said wedlock one daughter named as Mst. Farzana was born on 17‑3‑1994. Unfortunately the relations between the spouses did not remain cordial. Zulfiqar petitioner No. l divorced Mst. Kausar on 10‑8‑1995. Mst. Kausar respondent No. l filed the suit under section 25 of the Guardian and Wards Act to obtain the 'Hizanat' of her minor daughter Mst. Farzana against Zulfiqar petitioner No. l as well as his brother Mumtaz and his sister Mst. Karman petitioners Nos.2‑ and

3. The said petition has been resisted by the petitioners and in the written statement the plea has been taken that Mst. Farzana has been handed over to Zulfiqar at the time of divorce.

2. During the pendency of the said suit Mst. Kausar filed an application under section 12 of the Guardian and Wards Act to obtain temporary custody (Hizanat) of Mst. Farzana on the ground that Zulfiqar petitioner/defendant was employed in Pak Army and was not keeping the minor with him and she was improperly being brought up by Mumtaz and Mst. Karman. The application was resisted by the petitioners who submitted the written reply wherein they took up the plea that there was no justification to accept the same. After hearing the parties Mr. Tahir Pervaiz Senior Civil Judge, Sahiwal accepted the said application with the reasoning that Mst. Farzana being a minor female required the nursing care of the mother. The appeal filed by the petitioner has been dismissed by the learned District Judge, Sahiwal. Feeling aggrieved the petitioners/defendants have filed writ petition with the contention that the impugned judgments are illegal, void and inoperative.

3. I have heard the preliminary arguments. The main contention of the learned counsel for the petitioners is that there is no ground to pass the impugned orders for the transfer to temporary custody of Mst. Farzana minor to Mst. Kausar respondent No.1/plaintiff. He added that the father cannot be deprived of the custody of the minor particularly when he was handed over the minor at the time of divorce in lieu thereof. I have gone through the impugned orders and hold the view that there is no need to take an exception thereto. Mst. Farzana is aged less than 2‑1/2 years at present. It is the admitted position that her father Zulfiqar petitioner No.1 is Army ' Jawan' who is not physically looking after her minor daughter and that the minor is with his brother Mumtaz and his sister Mst. Karman petitioners Nos.1 and

2. The aforesaid facts have stolen the eminence to make me express the view that this writ petition has failed to establish the infringement of any Constitutional right of the petitioners. Legally the welfare of the minor has to be kept in mind while disposing of the suit under section 25 of the Guardian and Wards Act and an application moved under section 12 of the Guardian and Wards Act. Any of the conditions qua the minor at the time of the inception of the divorce has not to play the legal role and the paramount consideration in the respective field would be nothing but the welfare of the minor. In the instant matter it is the admitted position that Zulfiqar petitioner No.1/defendant No.1 is living beyond Rawalpindi and performing his duties in Pak Army being an Army ' Jawan'. He is not leading a matrimonial life as he has not contracted the second marriage. Even no female of his family is living with him at the place of his posting. Mst. Farzana minor aged 2‑1/2 years is living with her uncle Mumtaz and her Phuphi' Mst Karman petitioners/defendants in Chak No.23/14‑L Tehsil Chichawatni District Sahiwal, who are not entitled to have the custody of the minor according to the prevalent law in the presence of the mother. Mst. Farzana is a small baby of tender age of 2‑1/2 years and definitely needs nursing care of the mother which in the aforesaid circumstances cannot be provided by Zulfiqar petitioner No. l while his brother and sister (petitioners Nos.2 and 3) are not entitled to retain her. Due to the lack of the lap of the mother Mst. Farzana cannot be expected to lead a convenient life and shall not be able to get the proper guidance and have the proper brought up. Consequently both the learned lower Courts have reached at the right conclusion that in the circumstances of this matter it is proper to transfer the temporary custody of Mst. Farzana minor to her mother who is none else than Mst. Kausar respondent No. l/plaintiff.

4. For what has been said above, I dismiss this writ petition in limine. A. A./Z‑9/L Petition dismissed.