1994 PLP 1098 (MLD)

This judgment shall dispose of W.P.- No.3610 of 1988 and W.P. No.5360 of 1988 which are directed against the same judgment of the Additional District Judge, Lahore.

2. The dispute relates to the custody of three minor children namely Sadiq Ali, Shazia and Asiya who were born out of the wedlock of Mst. Zainab Bibi petitioner and Rehmat Ali respondent No.1. The marriage between the spouses was however, dissolved by the Family Court on 12th May, 1984. Earlier on 10th of January, 1983. Rehmat Ali Respondent No.1 had filed an application under section 25 of the Guardians and Wards Act for the custody of the three minors. This application was contested by respondent No.1. Learned Guardian Judge. after recording the evidence of the parties accepted the application as regards Sadiq Ali minor and his custody was ordered to be handed over to the father i.e. respondent No.1. The application was, however, dismissed qua the minor daughters.

3. Two appeals, one by Mst. Zainab Bibi and other by Rehmat Ali were filed which were dismissed by the District Judge on 1st of June, 1988 and the order of the Guardian Judge was maintained. In W.P. No. 3610 of 1988. Mst. Zainab Bibi the petitioner has challenged the order as regards the custody of Sadiq Ali while Rehmat Ali has come to this Court by filing W.P. No.5360 of 1988 with the prayer that he be granted the custody of the two minor daughters also. The arguments of the learned counsel for the parties have been heard at some length.

4. From a perusal of the judgment of the Additional District Judge, it appears that while granting the custody of Sadiq Ali he only went by the age of the minor. But this factor under the law is not conclusive. The foremost rather the only consideration in matters relating to the custody of minors is their welfare.

5. Neither the Guardian Judge nor the lower appellate Court ascertained the wishes of the minors. As the minors in the present case have admittedly attained the age of discretion, such an exercise should have been undertaken. Faced with this situation both the learned counsel prayed that the judgment of the Additional District Judge be set aside and the matter be remanded to him for decision afresh. This appears to be a fair concession and is accordingly accepted. As a result of what has been stated above the impugned judgment of the Additional District Judge is declared to be without lawful authority and of no legal effect with the result that both the appeals filed by the petitioner and respondent No.1 shall be deemed to be pending before him and shall be decided afresh in accordance with law. The parties are left to bear their own costs. The parties shall appear before the District Judge, Lahore on 29th June, 1991, who may either hear the appeals himself or entrust the same to an Additional District Judge. As the matter relates to the custody of the minors the appeals shall beg decided within a period of two months. M.Z.S./Z-101/L Order accordingly.