1999 PLP 2960 (MLD)

Muhammad Ramzan for Respondent. In this Constitutional petition, the petitioner has challenged the order, dated 11-6-1997 of Civil Judge, 1st Class/Guardian Judge, Kharian, arraigned as respondent No. 2 whereby the custody of minor Sidra Iqbal daughters of the petitioner was given to respondent No. 3 father and that of Additional /District Judge, Kharian, dated 2'1-11-1997 who affirmed in appeal- the findings of the respondent No. 2.

2. Briefly the facts of the case are that respondent No. 3 moved an application under section 25 of the Guardians and Wards Act before respondent No. 2, for the custody of his minor daughter Sidra Iqbal aged 9 years stating that the petitioner-respondent had illicit relation with one Qamar Saleem his employee which developed to such an extent that the petitioner after getting divorce married the said Qamar Saleem. It was averred in the application that it was not in the interest of the minor to live with her mother as she was of bad character, quarrel-some woman and could not properly bring up the minor daughter. It was further stated that the petitioner had two children from her second husband Qamar Saleem which would consume all the concentration towards nourishment of these two children and the welfare of the minor would suffer. There averments were controverted by the petitioner.

3. On the pleadings of the parties, following issues were framed.--(1) Whether it is in the welfare of the minor that her custody be granted to the petitioner?

2. Relief.

4. Respondent No. 3 examined himself as A. W. 1 whereas the petitioner got her statement recorded as R W. 1 and produced Mian Dad son of Fazal Dad as P. W.

2. Issue No. 1 was decided by the Guardian Judge in favour of respondent No. 3 mainly on the ground that the petitioner has contracted marriage with Qamar Saleem, who was not related to the minor Sidra Iqbal within the prohibited degree. It was established in evidence that Qamar Saleem was an employee of respondent No. 3 at the time when the marriage between the petitioner and respondent No. 3 subsisted. It was also admitted that the petitioner has two children from loins of second husband-Qamar Saleem. It was held that the petitioner is working lady and her job is of such a nature that she cannot always be with her minor daughter in the house of her new husband. Respondent No. 2 came of the conclusion that the minor was inching towards majority and it would not be in their interest and welfare if she resides in the house of her step-father, who was not related to her within the prohibited degree. The custody of the minor, therefore, was ordered to be handed over to respondent No. 3 her father.

5. Respondent No. 1 affirmed the findings of respondent No. 2 in appeal by giving plausible reasons. The Additional District Judge, rightly observed that the minor girl is being used for nourishment of the other children born out of wedlock between the petitioner and her second husband Qamar Saleem.

6. The marriage of the lady/petitioner with a person not: related to the minor within the prohibited degree deprives her of her right to Hizanat. This P proposition of law is now well-settled. I am fortified in my view by the following judgments:- (1) Mst. Nazir v. Hafiz Ghulam Mustafa and others (1981 S C M R 200). (Riaz Kayani, J) (2) Mst. Sabiha and another v. Mst. Badri Jamala and another (PLD 1985 Peshawar 156) (3) Mst. Amir Mai, and another v. Ahmad Ali (1998 C L C 846)

7. Learned counsel for the petitioner wanted to make premium from the statement of Sidra iqbal minor recorded by the learned Additional District Judge, Kharian on 21-11-1997 whereby she stated that she is living amicably with her mother and Qamar Saleem and that she is not ready to live with her father-respondent No.

3. She also stated that her step-father is better than her real father and she does not want to go to the house of her step mother. She added that if she is sent to her real father she will come back to her mother.

8. Needless to add that her continuous living with the petitioner prompted her to make such a charged and emotional statement without realizing that in the long run it was for her welfare to be reared up in the house of her father where B her real brother was living and his association with the minor will create a congenial atmosphere conducive to harmonies quickly paternal ties with her father.

9. Learned counsel for the petitioner contended that there was a compromise between the petitioner and respondent No. 3 wherein it was agreed that the son would be kept by the father and minor Sidra Iqbal would live with the petitioner. Application under section 25 of the Guardians and Wards Act was contrary to the aforesaid compromise and should have been dismissed by respondent No. 1 on this simple ground. I am afraid this contention will not promote the case of the petitioner to any extent whatsoever. An undertaking in the form of compromise given by a person against his right available to him under the law is of no significance. Such an agreement cannot disentitle the father to bring an application for the custody of the minor through a petition C under section 25 of the Guardians and Wards Act. The learned Guardian Judge can, notwithstanding such an agreement, pass appropriate order keeping in view the welfare of the minor. I am guided in my view by the judgment reported in Mst. Ghazala Yameen v. Muhammad Yasmeen (1987 M L D 2940).

10. The concurrent findings reached by two Courts below in such-like matters is not upon to be questioned in Constitutional jurisdiction, Reliance is placed on Abdul Ghafoor Gill v. Mussarat Khan (P L J 1984 Lahore 391), Sakhawat Ali and another v. Mst. Shui Khelay (P L D 1981 SC 454) and Sharifan Bibi v. District Judge (1988 C L C 1835).

11. For the reasons stated above this petition has no merit and is dismissed. Q.M.H/M.A.K./B-47/L Petition dismissed.