2003 PLP 1265 (CLC)

(c) Guardians and Wards Act (VIII of 1890)

S. 25

Custody of minor

Welfare of minor

Minor (boy) was being brought up by his mother properly and adequately

Minor quite vehemently expressed his desire and preference to continue to live with his mother

Preference of minor being one of considerations in such cases, mother was not deprived of his custody. (d) Guardians and Wards Act (VIII of 1890)

S. 25

Custody of minor

Father of minor had not so far taken another wife

Father should nave access to the minor son and contribute in his bringing up

Personal grudges and differences in the parents should not be allowed to have adverse effects on the future of minor--Parties were living in the neighbourhood

In the interest and welfare of minor, minor-would visit his father on the weekend, who should return the minor next evening voluntarily. Javed Mahmood Pasha for Petitioner. Malik Abdul Khaliq Awan for Respondents. The petitioner and respondent No.2, were married on 11-1-1992, as a consequence thereof a son namely Muhammad Abdullah Tahir was born. The marital life of the parties appear to have been unsuccessful which gave rise to disputes and litigation between them. Muhammad Latif petitioner took out proceedings for the custody of minor by instituting petition under section 25 of the Guardians and Wards Act on 12-11-2001, the petition was contested by respondent No.2. Issues were framed by the learned Guardian Judge, Shorkot. After trial, the learned Guardian Judge took the view that the petitioner who was natural guardian of the minor, a right to custody vests in him as the minor had crossed the age of seven years and even the, welfare of the minor lies with him. The petition was thus accepted vide order dated 14-9-2002, ordering the handing over custody of the minor to the petitioner observing however, that the respondent mother will have the right to see the minor on first Sunday of each month. Dissatisfied with the same, the respondent preferred an appeal, which was accepted by the learned Additional District Judge, Shorkot on 4-1-2003 taking the view that the minor was obtaining worldly as well as religious education and was deeply associated with his mother for the last so many years, it would not be in the welfare of the minor to separate him from the mother. It was, however, observed that "if at any stage mother of the minor contract second marriage, the custody of the minor would revert to the respondent father Muhammad Latif. " The petitioner father of the minor has assailed this judgment of the learned Additional District Judge through this petition.

2. The learned counsel contends that the father of the minor who is Science Teacher of experience and means can better look after the interest and welfare of the minor who has crossed the age of seven years and the petitioner is entitled to his custody. Reference has been made to Surraya Bibi v. Abdur Rashid 1980 CLC 785; Faiz Bakhsh v. Mst. Sakina 1980 CLC 1989 and Mst. Rashida Bibi v. Muhammad Ismail 1981 SCMR

744. The learned counsel for respondent No.2 while supporting the judgment of the learned Additional District Judge contends that the minor is receiving good education and is being brought up by his mother who also is a school teacher. According to him, the petitioner cannot be given the custody of the minor who had failed throughout to pay even a single penny for the brought up and other expenses of the minor. It is contended that mere crossing age of seven years is not sufficient to deprive the mother of the custody of the minor as the main consideration is welfare of the minor. Reference has been made by him to Mst. Naheed Abbas v. Syed Zubair Hussain Shah and others 1989 ALD 446; Mst. Zahran v. Umaar Draz and others 1993 CLC 907; Muhammad Iqbal v. Additional District Judge, Bhalwal and 2 others 2000 CLC 108 and Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838.

3. The ratio of the precedents cited by the learned counsel parties is that the welfare of the minor is supreme consideration matter/dispute of custody of minor. Muhammad Abdullah Tahir minor in this case is of the age of about 10 years, he is present in Court who on Court's query, has stated that he was studying in 4th class and acquiring good education with distinction in the class. He is a lad of good physique and health and responded to the questions of the Court with confidence. There is thus no doubt that he is being brought up in al proper atmosphere by his mother and being educated. The evidence recorded in the case by' the learned Guardian Judge, has not been placed on record of this writ petition. It is thus not possible to examine the correctness of the order of the learned Additional District Judge that the same was result of any misreading or non-reading of the evidence on the record. Approach adopted by him as is reflected from his order is neither, perverse nor illegal. Suffice it to observe that the Courts while seized of such matters and dealing with them act in locus parents position and have to keep in view the welfare of the minor which is the prevailing consideration. The minor as observed above is being brought up by the mother properly and adequately. He has quite vehemently expressed his desire and preference to continue to live with his mother. The preference of the minor being one of the considerations in such cases, I am not persuaded to deprive the mother of his custody, contrary to the wishes of the minor. Judgment of the Appellate Court to this extent is perfectly valid and needs no interference.

4. This, however is a fact that the petitioner is father of the minor, who also has not so far, statedly taken another wife. He also should have access to the minor and contribute in his brought up. Personal grudges and differences in the parents should not be allowed to have adverse effects on the future of the minor. The petitioner and respondent No. 2 both are statedly living in Shorkot town in the neighbourhood. It would be in the interest and welfare of the minor that he visits, the petitioner for a day on the weekend who should return the minor to his mother before the next evening voluntarily. The parties may appear on 27-3-2003 before the, learned Guardian Judge for an appropriate arrangement to execute this direction of the Court. The petition is accordingly dismissed with the above observation. M-1752/L Order accordingly.