2006 PLP 1728 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition challenged the judgments/orders dated 25-5-2005 and 24-10-2005 passed by the learned Guardian Judge and the learned Additional District Judge, Jhang, respectively.

2. Succinctly, relevant facts are that respondent No.1 filed an application under section 25 of the Guardian and Wards Act, 1890 to retain custody of the two minors namely Nazia Bibi and Muhammad Shaban, ages of 13 years and 8 years, respectively being their maternal grandmother. It was pleaded that the petitioner entered into a tie of marriage with Mst. Sakina Bibi daughter of respondent No.1, according to Muslims rites through a registered Nikah Nama. This marriage gave birth to above noted two minor children but relations between the spouses did not remain cordial and ultimately resulted in separation. Spouses divulged themselves into multiple litigations and suits of Mst. Sakina Bibi for dissolution of her marriage; maintenance allowance for herself and the minors were ultimately decreed on 2-3-2002. The petitioner remained unsuccessful in his suit for restitution of conjugal rights. The minors were in custody of respondent No.1 and were studying in Government Primary School Piplanwala, Mauza Kullowala, where their maternal grandmother resided, as both the spouses had entered into their respective second marriages. Respondent No.1 pleaded in her application that the minors if given to the petitioner would face ill treatment of their stepmother, thus it was in the welfare of the minors to allow their custody to remain with her.

3. The petitioner being respondent in the application filed by respondent No.1 contested the same by filing his written reply wherein he relied on an agreement dated 25-3-2000 allegedly reached between Mst. Sakina Bibi to forego her right of custody of the minors in case of her re-marriage. The petitioner asserted his right of custody being father of the minors in their welfare. Controversial stance of the parties necessitated framing of issues and recording of evidence. The learned Guardian Judge after doing the needful accepted the application of respondent No.1 vide his judgment/order dated 25-5-2005.

4. Petitioner aggrieved of the decision of the learned Guardian Judge, filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 24-10-2005. The petitioner now filed instant constitutional petition with the relief noted above.

5. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Besides the reasons, which concurrently weighed with respondent Nos.3 and 4 in appointing respondent No.1 as guardian of the minors, undisputedly, both the spouses have solemnized their respective second marriages. Under law on account of second A marriage of mother she was disqualified to be appointed as a guardian of the minors and in her absence, petitioner being father could claim their custody but due to his second marriage, welfare of the minors was to be looked into. The minors are livingwith their maternal grandmother since long and she under Muhammadan Law, is marked with first priority of custody of female minor. The learned Guardian Judge has also considered the intelligent selection of the minors, which was expressed in favour of respondent No.l. Mst. Nazia Bibi is reaching the age of majority as she is at the present of 13 years age and needs motherly teachings in order to enter in her practical life and for this purpose respondent No.1 can best provide the teachings, in this behalf. The minors could A not be given to the petitioner to face their step-mother, at the cost of their future. The minors are being given schooling and worldly education by the maternal grandmother with whom they have deep attachment. Record revealed that a decree for maintenance allowance of the minors has already been passed by the concerned Court and the petitioner is exerting to avoid the same under the garb of litigation in hand. Evidence on the file which has already been correctly appraised by respondent Nos.3 and 4 and their concurrent judgments, revealed that lis was correctly concluded, without committing any illegality amenable to constitutional jurisdiction of this court.

6. For the reasons noted above, petitioner was rightly refused custody of the minors by appointing respondent No.1 as their guardian and no case for interference by this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit, is dismissed in limine. S.A.K./Z-18/L???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.