2007 PLP 1578 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition assailed the judgments dated 31-10-2005 and 7-2-2006 passed by the learned Guardian Judge and the learned Additional District Judge, Sheikhupura, to be declared illegal, void and of no legal consequence, whereby petitioner's application under section 25 of the Guardians and Wards Act, 1890; and his appeal were dismissed, respectively.

2. Succinctly, relevant facts are that petitioner filed an application under section 25 of the Guardian and Wards Act, 1890, praying custody of his minor daughter namely, Mst. Zarqa Kalsoom from respondent No.2 her mother. The custody was opposed and controversial stance of the parties, led to framing of issues and recording of evidence. The learned Guardian Judge seized of the matter, after doing the needful, dismissed the application of the petitioner vide his judgment dated 31-10-2005.

3. Petitioner being aggrieved of dismissal of his application, filed an appeal before the learned. Additional District Judge but remained unsuccessful as the same was also dismissed on 7-2-1996. Petitioner, thereafter filed instant constitutional petition with the relief noted above. Respondents Nos.2 and 3 in response to notice by this Court have appeared through their counsel 4.I have heard the learned counsel for the parties and have examined the record appended herewith. Besides the lawful reasons which concurrently weighed with the learned Guardian Judge and the learned Additional. District Judge, petitioner could not refute that he over all solemnized 4 marriages and out of these, he is still pulling on with his two wives. It was pleaded by the petitioner during the course of hearing of the case that he has 8 children from his two wives i.e. 5 male and 3 female minors. It is also evident from the record that Mst. Nasiran Bibi (respondent No.2) was divorced by the petitioner somewhere in 1995 and she left the house of the petitioner along with her minor daughter Mst. Zarqa Kalsoom. Suit far recovery of maintenance allowance of her this minor daughter, was decreed in the year 1997 awarding the minor maintenance allowance at the rate of Rs.1,500 p.m. which remained unpaid till 2-6-2003 when he filed his application under section 25 of the Guardians and Wards Act. He never pressed his application raider section 12 of the Act (ibid) before the learned Guardian Judge and did not care to provide any maintenance to his own child, pending proceedings or earlier to it. Petitioner never cared to look after the affairs of his own minor daughter who at that time was a student of 8th Class and instead solemnized his own second marriage. In this background, it will be prejudicial to the welfare of the minor to hand over her custody to the petitioner for her brought up by step-mother, in preference to her real mother. This fact cannot be denied- that there can be no better lap than that of the real mother. Petitioner himself is an Army personnel and remains under constant transfers, from one place to another and in his absence there will be none to look after the growing girl and she cannot be left to the mercy of his other two wives.

5. Evidence on the record- revealed that petitioner has neglected the minor since her birth and has voluntarily allowed his divorced wife to take along with her to the house of her parents where she is putting up with maternal-relations. Petitioner cannot even recognize his daughter and in these circumstances to deprive the minor of her environments wherewith she must have developed attachment, would negatively reflect on her personality. Honourable Supreme Court in a case with similar facts i.e. Mst. Firdaus Iqbal v. Shafat and others 2000 SCMR 838 mandated that right of the father to claim the custody of the minor was not an absolute right and welfare of the minor is the paramount consideration, in such-like cases. In this precedent case as well; father had neglected his minor child and solemnized second marriage, resulting in his deprivation of right to claim the custody.

6. As regards stance of the petitioner that father should be given control over the minor as per judgment in the case of Ali Akbar v. Kaniz Maryam PLD 1956 Lah.

484. This case proceeds on altogether different facts and cannot be applied to instant case in preference to the law laid down by the apex Court in the case of Mst. Firdaus (supra). Scan of record and impugned judgments revealed that controversy was correctly put to rest without committing any error of law/facts.

7. For the reasons noted above, no case for interference in constitutional jurisdiction of 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 with no order s to costs. M.H./M-389/L Petition dismissed.