1989 PLP 3120 (MLD)

(c) Muhammadan Law

Custody of minor--Rules regarding Hizanat under Muhammadan Law would not operate as a bar of jurisdiction of Court to depart from them if it was found that it was not in welfare of minor to give custody of minor to a person who under said rules otherwise had a preferential claim to retain. [p. 3121, 3122] A Kh. Abdul Hamid Butt for the Appellant. Nemo for Respondents Nos. 1 and

2. Aurang Zeb Mirza for Respondent No.

3. Date of hearing: 21st December, 1988. In this Constitutional petition, the petitioner seeks declaration that orders dated 20-3-1988 and 29-6-1987 passed by respondents 1 and 2 respectively are unjust, without lawful authority and of no legal effect.

2. The facts relevant for disposal of this writ petition in brief are that respondent No.3 made an application under section 25 of the Guardian and Wards Act, in the Court of Gurdian Judge, Lahore for recovering the custody of his minor daughter which was accepted by order dated 20-6-1987. The petitioner who is the maternal-grandmother of the minor feeling aggrieved from the said order filed an appeal in the Court of learned Additional District Judge, Lahore which has been dismissed through order dated 20-3-1988.

3. The main burden of argument presented by learned counsel for the petitioner was that mother of the minor having contracted another marriage as such under the Muhammadan Law she was disentitled to retain Hizanat of 01inor therefore, the petitioner as maternal-grandmother of the minor had preference over respondent No.3 in the matter of custody/Hizanat of the minor, the minor being female for which reason the two Courts below have exercised jurisdiction not vested in them under the law to pass the impugned orders giving custody of the minor to respondent No.

3. The argument on the face of it looks attractive but on proper analysis it is likely to fail. Primarily, it is the duty of the Court in Guardian cases which has to exercise parental jurisdiction in such matters to determine in each and every case on its own merits as to where the welfare of minor lies i.e. by giving her custody to either of the parties. The rule regarding Hizanat in the Mohammadan law does not operate as a bar of jurisdiction of the Court to depart from them if it is found that it is not in the welfare of minor to give custody of minor to a person who under the said rule otherwise has a preferential claim to retain. In this case, the learned trial Court on issue No.2 which is with regard to welfare of minor, after careful and elaborate appraisal of evidence brought on the record, came to the conclusion that welfare of the minor, was in giving her custody to respondent No.3. The learned lower appellate Court also came to the same conclusion on the strength of evidence of Lal Din a witness examined by the petitioner as R.W.I, on the basis of which it was found that the grand parents of the minor were 70 years old and the present petitioner i.e. the grandmother usually remained sick therefore, they could not look after the minor and bring her up properly as compared to the respondent No.3 who was father of the minor. I have gone through the statement of R.W.I in which he admitted the said facts. Learned counsel for the petitioner insisted that the grandmother of the minor was not so physically incapacitated to hold that she was not in a position to look after the child. In order to appreciate this contention an order was passed for her appearance in person in this Court. She appeared today and I find that her eyesight is so weak that she could hardly see. The concurrent findings of the facts of two Courts below that it will be in the welfare of minor if her custody is given to respondent No.3 where she will be looked after properly and brought up in better environments do not suffer from any legal infirmity so as to render the impugned orders as without lawful authority. No material on record has either been misread, misconstrued or kept out of consideration. The writ petition fails which is hereby dismissed without any order as to costs. H.B.T./R-129/L Petition dismissed.